November 2007
Are We Bovvered?
Catch phrases of well-known comedians such as David Walliams, Matt Lucas and Catherine Tate have been removed from posters created by Christian Publishing Outreach (CPO), a company that distributes Christian literature and material.
CPO included phrases such as “Am I Bovvered?” and “Yeah but, no but” on posters promoting the Christian faith and church attendance for sale to churches. They received complaints from the holders of trade marks and goodwill in the phrases, and as a result, CPO has now withdrawn the posters and issued an apology on its website.
Briffa’s comment
The situation highlights a number of aspects of the law relating to goodwill which can be sometimes be overlooked. In particular, it shows that the law can cover catch phrases and slogans as well as brand names. Many slogans are purely descriptive of the goods advertised or are too generic. However, comedians’ catch phrases often create a direct link in the mind of the general public the programmes they originate from and can therefore distinguish products of a particular producer.
This situation has been resolved before any legal proceedings were brought, but it is interesting to consider whether liability would have existed. Normally for trade mark infringement there must be a likelihood of confusion in the minds of the intended audience. It is debatable whether the public would think that the CPO posters were being endorsed by the likes of Matt Lucas. A similar situation gave rise to the case of Irvine v Talksport in which racing driver Eddie Irvine successfully claimed that a faked photograph of him in an advert falsely suggested that he endorsed a radio station. Eddie Irvine brought his action in the common law of Passing Off.
An extra line of protection available to protect the rights might be available in the form of section 10(3) of the Trade Marks Act 1994 which protects well known marks from activity which causes a detriment to their reputation even if there is no likelihood of confusion. Certainly being connected with a religious faith without consent is quite likely to be objectionable.
The posters of the CPO were clearly being produced in the course of trade as they were being sold. This is an example that shows that even organisations with a purpose unconnected to financial gain and even charities must be careful not to misuse trade marks. If a church produced its own posters with the phrases then the question of whether it was in the course of trade could be much more complex. Money is received by churches and some religious institutions are very wealthy.
For more information contact Peter Mason