Irvine & Ors v Talksport Ltd.

A person with substantial goodwill in their name and image may restrain a false representation that they have endorsed another’s business. Whether a promotional image conveys endorsement depends on the impression it gives. Its humorous character, or the fact that it has been manipulated, does not prevent that conclusion.

Damages for false endorsement may be assessed as a reasonable endorsement fee. The fee is what the defendant would probably have had to pay to obtain lawful permission for the use made, not what it could afford or wished to spend. Actual comparable deals and reliable expert evidence must be evaluated; the limited scale of a campaign affects the fee only insofar as the evidence shows that it would do so.

Mr Eddie Irvine and his management companies brought a passing off claim against TalkSport Ltd after it distributed a promotional Formula One pack to 981 potential advertisers. The pack included a manipulated image of Mr Irvine apparently listening to a radio bearing Talk Radio’s logo. He had not authorised the use or endorsed the station.

Laddie J held that the image falsely represented an endorsement and awarded £2,000 damages, assessed as a reasonable endorsement fee. TalkSport challenged liability. Mr Irvine appealed the damages assessment, contending that the unchallenged evidence established a minimum fee of £25,000.

The central questions were whether the image conveyed a false endorsement and how a reasonable endorsement fee should be assessed.

1. Disposition. Jonathan Parker LJ, with whom Brooke and Schiemann LJJ agreed, dismissed TalkSport’s cross-appeal on liability and allowed Mr Irvine’s appeal on damages. The award was varied from £2,000 to £25,000.

2. The manipulated image was a clear representation that Mr Irvine endorsed Talk Radio. Depicting a celebrity listening intently to a radio displaying the station’s logo conveyed that message. The allegedly humorous or spoof character of the promotional material did not answer the question whether the depiction represented that he had agreed to endorse the station. Nor did the possible visibility of the manipulation. The judge was entitled to accept the unshaken evidence of a recipient who understood the image as an authorised endorsement.

3. The court held that the principles in [1976] RPC 197 governed the assessment of a reasonable endorsement fee. The relevant fee was the sum that TalkSport would, on the balance of probabilities, have had to pay to obtain lawfully the endorsement it had appropriated. It was not the amount that TalkSport could afford, and its financial position was irrelevant.

4. The judge had erred by treating the small and limited campaign as itself a reason to reduce the fee. Whether that feature would affect the price was a question of evidence. The unchallenged evidence showed that Mr Irvine’s minimum fee in 1999 was at least £25,000, and that his actual endorsement agreements were all for at least that amount. That evidence was relevant and supported his unwillingness to undertake a smaller deal. The expert evidence had also addressed the particular campaign and had not been displaced by contrary evidence.

5. The Gillette arrangement and the newspaper agreements were not true comparables for an open endorsement of the station. The £2,000 assessment bore no relation to the evidence of the fee TalkSport would have had to pay. The proper minimum award was therefore £25,000.

• Court of Appeal (Civil Division). Mr Irvine’s appeal against damages was allowed and TalkSport’s cross-appeal on liability was dismissed. The damages award was varied to £25,000.

• High Court, Chancery Division (Laddie J). The judge held on 13 March 2002 that the promotional image falsely represented Mr Irvine’s endorsement of Talk Radio. On 25 March 2002 he assessed damages at £2,000, and made an order dated 27 March 2002.