Character Merchandising PDF

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Character Merchandising What is Character Merchandising? 1. Use of individuals identity in marketing/ advertising of goods or services. 2. Known as personality merchandising whereby celebrities use name and image to endorse and associate themselves with products and services.

Definition according to World Intellectual Property Organisation: 1. Defined as adaptation or secondary exploitation by creator of a fictional character/ real person/ by one/ several authorised parties of the essential personality features e.g. name, image, appearance of character in relation to goods/services. 2. WIPO in 1994: important to differentiate between the various subjects of merchandising since the scope and duration of legal protection may vary.

WIPO Report 1 .(i) Merchandising of fictional characters; Involves the use of essential personality features (name, image, etc.) of fictional characters in the marketing and/or advertising of goods and services. 2 .(ii) Personality Merchandising Essential attributes e.g. name, image, voice and personality feature, of real persons in the marketing and/or advertising of goods and services.

Image Merchandising 1 .Image merchandising is the most recent form of merchandising. 2. It involves the use of fictional film or TV characters played by real actors.

Protection of Personality 1 .Decision in Douglas v Hello tantamount to establishing ‘image right’ in UK. 2 .Domestic courts have been reluctant to introduce a right of publicity through case law, when the legislature has declined to do so.

The Legal Ground for Protecting CM 1. Du Boulay v Du Boulay [1867] no copyright in a name. 2. Elvis Laddie J stated that no-one owns his own likeness, apart from any c/r, which might subsist in a particular reproduction, in Elvis Presley TM [1997]. 3. Pop group sued Lyngstad for selling t-shirts and other goods which bore pic of ABBA. Court granted relief: unlikely anyone would imagine that the consent of the group would have been given. Here in, Lyngstad v ABBA.

Mirage Studios v Counter-Feat Clothing Company (NT case) Ninja Turtles - Interim injunction sought by claims to retrain the use of 4 cartoon characters on the grounds that their reproduction constituted either a breach of c/right or passing off.

1 .At the time, NT were a marketing phenomenon. The creators had formed a company Mirage Studios to exploit marketing potential. 2 .The Ds licenced characters from the owners of the c/r, but licence been awarded elsewhere. 3 .Ds sought to merchandise turtles without infringing the rights of the claimants by commissioning an artist to design humanoid turtles which were not identical to the claims. 4 .Claims produced evidence that there was confusion with Ds T shirts.

Trade Marks & CM

1. The first test of the impact of the TMA 1994 on personality merchandising was Elvis Presley Trade Marks “…there should be no prior assumption that only a celebrity or his successors may ever market his own character.”

2 .The Elvis decision would seem to suggest that the more famous the personality, the less likely they will be able to obtain trade mark protection

3 .Can be problematic, as law of passing off will not protect a name as such. Registration of famous names

1 .Pictures of celebrities have been registered as TMs, e.g. Eric Cantona, 2 .IPO refused to register images of the late Princess of Wales until later. 3 .The UK decision of Rihanna v Top Shop involved product endorsement. Issue was whether Top Shop, who sold t-shirts bearing Rihanna’s image but who had never bothered to get the singer’s consent, was guilty of passing off. Yes, said the court, Rihanna is very well known and people will assume that she has endorsed the t-shirts.

Future of CM 1 .Fame should be seen as a product of popular culture and should be wholly owned by the person who becomes famous. 2 .The danger in giving both celebrities and fictional characters IP protection popular culture is impoverished as a result.

1. Examine the case of Mirage Studios (Ninja Turtle case) and discuss the issues regarding character merchandising. This is the case in which the drawings of humanoid turtles were, again, not directly copied by the defendant. The fact that the reproduction was of the concept of a humanoid turtle, rather than of any of the claimant’s particular drawings, raised the judge’s concerns over the decision on copyright infringement. This is a classic example of the problems posed by the way in which copyright law will only protect the expression of ideas, but not the ideas themselves. In Mirage Studios, the name ‘Ninja Turtles’ alone was held not being capable of copyright protection, so doubt remains as to the precise boundary of copyright protection of names. This case clearly satisfied the requirements of passing off: the claimant had goodwill, there was a misrepresentation through unauthorized sales which could damage Mirage Studios trade. The courts have attempted to reconcile this decision with the previous authorities by suggesting they were inappropriate where copyright exists in the character. Despite this, it is doubtful that the common field requirement remains relevant when discussing character merchandising and image rights.

2. A children’s production company Tiny Tots TV has developed a new television series based on pirates aimed at children aged 4-8 years. The characters are based on real pirates, depicting them as children growing up on the ’high seas’. The stories revolve around Little Long John Silver and Baby Blackbeard. The television show ‘Ahoy my Tiny Tots’ is a huge success and the programmes are licensed to numerous international stations. A full-length feature film is produced and within 12 months the characters have achieved global success. The company enters into many lucrative character merchandising agreements to generate additional revenue. Another firm, Images Production (UK) Ltd, produces an ‘Unofficial Ahoy my Tiny Tots Pirate encyclopaedia’ currently for sale in several large bookstores. Advise Tiny Tots TV as to the nature of the legal protection they can rely on to enforce their rights over their fictional characters against unauthorised use....