25 Feb TINA TURNER LOSES COURT BATTLE WITH TRIBUTE ACT

Legendary queen of Rock’n’Roll, Tina Turner, has lost her action against a tribute act who she sued for looking too much like her.

Dorothea ‘Coco’ Fletcher, a Tina Turner tribute act in her 30s, was sued by Turner as she claimed that Ms Fletcher looked so much like her in promotional posters that fans were likely to mistakenly think that Turner was involved in her show’s production.

Turner sought a ban on her name and likeness from posters, and, following the initial hearing, the posters for the show were changed.

Turner then lost on appeal as the Court ruled in Ms Fletcher’s favour, deciding that the risk of confusion did not outweigh Ms Fletcher’s right of artistic expression in relation to the posters.

The case has rumbled on for two years but yesterday, following Turner’s appeal to the Federal Court of Justice, the Court ruled in favour of Ms Fletcher, reiterating the Court of Appeal’s conclusion that Ms Fletcher’s posters did not indicate that Turner supported or participated in the tribute show and the posters contained neither an indication of this, nor were ambiguous as to Turner’s involvement.

In the UK, claims of this nature would need to be brought as a claim for ‘passing off’. This is an action which can be brought by someone who has a reputation and goodwill in a brand or product, where someone else deceives the public through a misrepresentation into thinking that their product is part of that brand or is endorsed by the brand, and which results in loss or damage to the brand.

Rihanna recently brought a passing off claim against Topshop over a T-shirt which featured a photograph of her, but was not connected or endorsed by her. Rihanna, who herself has a merchandising and endorsement brand, successfully argued that consumers would be confused into thinking that the T-shirt had been endorsed by her.

In TV production, passing off complaints sometimes arise in connection with programme titles, for example when a title includes words and phrases (including registered trade marks) closely associated with other programmes, films, or businesses, without consent.

Normally the use of such words and phrases in titles is defensible in law because the use is descriptive in nature – they are not being used in a trade mark sense ‘in relation to’ goods and services i.e. to denote trade origin. Nevertheless, legal advice should be sought, particularly when considering using registered trade marks within titles without consent, as complaints can be time-consuming and expensive to deal with, irrespective of whether a legal claim is ultimately pursued.