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Imitation:  Not Always the Best Form of Flattery

22 October 2015
Oliver Fetiveau

A little story in the Guardian set the ‘Wryly Comic’ light flashing on the M Law Media Watch Switchboard this morning.  Please read the original article here…

Fact yet again is stranger than fiction. It appears that German World Champion and Manchester United flagship signing Bastian Schweinsteiger is not best amused by the latest infringement of his image rights. Hong Kong-based toy manufacturer DiD has created an Army Supply Doll – an action man figure of sorts – dressed in the regalia of a Nazi soldier. The snag? He bears an uncanny resemblance to our hard-tackling hero. The name of this desirable toy? Bastian. 


Please click through to this link if you are interested in purchase.*


The German press is up in arms with Bild distraughtly claiming ‘Unswer Schweini als Nazi-Puppe!’  Bastian has not immediately warmed to the association with the Third Reich – and his lawyers like it even less, slapping the manufacturers with a legal warning quicker than you could say ‘Achtung Schwein(steiger)!’.  


Given the uncanny likeness – of which Madame Tussauds would be proud - the response from Patrick Chan, the spokesman for DiD, is remarkably bullish: ‘We think all Germans look like that’, the implication being that they needed a German face and plumped for his. 


Ignoring for a moment the pressing question of ‘who on earth thought that manufacturing and offering this product for sale was a good idea?’, the question for us as lawyers, however, is what chance of a successful claim, assuming it were brought in the UK?   


The instinct is that any claim would be a slam dunk. Looking a little closer and it is not so straight-forward.  Image rights – or personality rights as they are also known - are not recognised by the UK courts in law, the clear practical inconsistency being that they are bought and traded every day.   Previously claims in image rights have been repackaged as a claim in false endorsement, relying on the principles of passing off, the route to justice which ex-Formula 1 driver Eddie Irvine paved.  Essentially Schweinsteiger would have to sue DiD on the basis that the sale of the doll implies an endorsement of the product by Schweinsteiger himself: the problem with such a claim, however, would be that certainly in the UK the proposition that he may have endorsed a Nazi doll is so outlandish that the reasonable consumer would be unlikely to believe this were the case?  As such the required ‘likelihood of confusion’ is possibly absent. 


A claim in defamation equally is not easy:  assuming that he was identifiable as the subject of the doll, he would have to convince the Court that the sale of the doll implied that he himself had Nazi sensibilities or sympathies.  Again, I think that is perhaps one step too far. 


His article 8 rights – the right to family life – could theoretically be engaged, but again, that’s not straightforward either. 


It is hard to imagine a set of facts which are more likely than these to persuade the Courts to usher in the protection of image under UK law – and yet something tells us it would take a brave Judge to do so…  Mr Schweingsteiger had best sue in the US relying upon his publicity rights - or indeed in Germany where the law provides for the protection of one’s own image  – and then enforce judgment overseas… 


*In no way does this constitute an endorsement or offer for sale of the Bastian toy in question, nor indeed of the Josef Stalin toy or the British Bulldog which equally is manufactured by DiD.

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