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Facts[]

Bob Krouse was a well-known professional football player with the Hamilton Tiger-cats who played as the number 14. Grant Advertising produced an advertising scheme for Chrysler which included a cardboard scorecard that was distributed to the public, known as the "Plymouth Pro Football Spotter" which allowed football fans to track scores. On the Spotter was an image of Krouse from behind with his number 14 clearly visible. Krouse sued Chrysler for use of his image without his consent. At trial he had argued invasion of privacy, breach of confidence, unjust enrichment, passing off, and appropriation of personality and was awarded damages of $1,000 with costs based on the tort of passing off.

Issue[]

  1. Does the law recognize a tort of appropriation of personality?
  2. If so, is Chrysler liable for misappropriation of the defendant's image?
  3. Is Chrysler liable for passing off?

Decision[]

Appeal allowed, action dismissed.

Reasons[]

  1. The law can recognize a tort of appropriation of personality, for which the court presented the following test:
    1. Must use the plaintiff's image in a fashion recognizable by the public
    2. The use of the image must be for the defendant's commercial advantage
    3. The use of the image suggests implied endorsement of defendant’s product
    4. There must be demonstrable harm to the plaintiff
  2. In applying this test to the facts, the court held:
    1. Krouse, being a public figure and relatively well known, meets the first requirement with the use of his number and the uniform
    2. The image was clearly used for a commercial purpose (advertising)
    3. The use of the image was found simply to be illustrating the action of a football game rather than the endorsement of Chrysler's products
    4. No evidence presented which showed demonstrable harm to Krouse
  3. The court held that the tort of passing off would have no application to the claim as there is no common field of activity between Krouse and Chrysler:
    1. The public would not buy the car on the assumption that they had been designed or manufactured by the respondent
    2. The public didn’t buy Spotter because it might have been designed/produced by respondent
    3. The spotter was not produced to be passed off as competition with a similar product marketed by respondent

Ratio[]

Common law does contemplate the tort of misappropriation of personality but the onus on plaintiff to show both injury and damage to their ability to market their personality.

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