2. The use of the name during the period of the agreement did not breach the TPA nor did it amount to passing off because it was the main reason for the establishment of such agreement. Also, any misunderstanding from the public during that period that the defendant owned the defendants’ business was a false assumption and did not constitute any breach. 3. The continued action of the defendant after the agreement was terminated was in breach of s52 of TPA because there was no legal ground to use the plaintiff’s name.
Also, because this continuation could portray that the plaintiff still has connection with the defendant which ended by termination of such agreement. 4. The conduct of the defendant breached s53(c) because it represented “the existence of a form of approval, rather than simply an acceptance of the use of the name, by Miss Wickham”. However, the conduct of the defendant did not constitute a breach s53 (d). 5. The alleged of passing off was not established because the plaintiff never had a business same or similar to the defendant’s business.
5- Remedies under the tort of passing off To begin with, most of plaintiffs prefer injection as a quick remedy for their issues. This is because the plaintiff is looking for a temporary and immediate trial that brings him/her a reward and to stop the defendant from infringing on his/her’ rights. So, interim injunction is a quick remedy from the court and it is designed for the plaintiff if he/she is suffering an injury because some one infringing his/her rights and can not wait until the end of the trial.
However, the interim injunction should not be given by the court easily, unless it is made sure that such an injunction would not result in any harm or damages for the defendant in a situation whereby the defendant’s conduct was originally legal. There was a case of a soccer player who played in one team and planned to break his contract with that team in order to play with another team which offered him higher salary. The court was not indulgent and refused to give an injunction. However, this does not mean that the court does not give an injunction at all.
The previous case was too old, but now all the stakeholders in sport are protected by the law and interim injunction could be issued in relevant circumstances. 6- Remedies under the Trade Practices Act 1974 In general, the TPA provided remedies more extensively than that provided from the tort of passing off as a following: In accordance with the s80 of the TPA , an injunction can be provided through the application of the Australian Competition and Consumer Commission (ACCC) or by ‘any other person’. This means that any person who suffers damages even general can take an action, such as, sport supporters.
Moreover, corrective advertising can be provided to clear a misrepresentation or misleading conduct at will. Further, the intention is not required to be proved in such action, just that the plaintiff has to prove that the relevant action was misleading or deceptive. Furthermore, in accordance with the s53 (c), (d) and s79 of the TPA, the defendant shall be punished with a heavy fine up to forty thousand for the natural person and up to two hundred thousand for the firms. This shows how the statute law has more advantages than the common law which might lead the action to be taken under the TPA rather than the tort of passing off.
7- Conclusion For sportsmen who have achieved a level of success, commercial exploitation of their personality is a way of making money. Through the tort of passing off or through an action under the TPA, the law gives some protection against the unauthorized use of a sports person’s name, image, and reputation by others. There are advantages and disadvantages to both, but if the sport person (plaintiff) wants monetary damages, as well as an injunction to prevent the defendant from continuing the misappropriation, the TPA may be more satisfactory. Kieran Perkins in Talmax Pty Ltd v Telstra Corp. Ltd has shown how this can be done.