The tort of passing off has been developed gradually in Australia through the common law in respect to protection of goodwill in personality. Firstly, in 1896 through Reddaway v Banham it intended to prevent a defendant from passing off his own goods as the plaintiff’s goods. In other words, it intends to protect the name, image and likeness of celebrity from an unauthorized firm from passing off its own goods and services by using the goodwill of the celebrity.
Later, in relation to the Spalding (AG) & Bros v Gamage (AW) Ltd 1915 the tort of passing off covers cases involved misrepresentations on the quality of the plaintiff’s goods. Moreover, from 1979 it covers extensively cases relating to the misdescription. However, there are three elements that should be proved in relation to establishing an action in the tort of passing off as a following: (a)- Reputation or goodwill acquired by the plaintiff (sport celebrity) in his goods, name and mark. (b)- Misrepresentation by the defendant leading to confusion or deception.
(c)- Loss or damage for the plaintiff (athlete) as a result of the defendant conduct. In the first instance, the athlete must prove beyond all reasonable doubt that he/she has goodwill. In this situation, the common law through the case of Henderson v Radio Corporation which was about ballroom dancers objected to the use of their image on the packaging of a record. They were not in the business of recording music for commercial sale, and hence, were not able to claim to be in a ‘common field’. However, they were able to show a pattern of former appearances in advertisements which earned them an income.
The Court ruled that there was no need for an actual or potential area in which the parties’ trading activities conflicted. Manning J elaborated, stating that the development in advertising practices had ‘opened up a new field of gainful employment for many persons, who, by reason not only of their sporting, but of their social, artistic, and other activities, which have attracted notoriety, have found themselves in a position to earn substantial sums of money by lending their recommendation or backing to an almost endless variety of commodities’ .
Secondly, cases of appropriation of personality are generally concerned with misrepresentations regarding the status of the plaintiff, which leads to more public confusion, thereby resulting in damage to the plaintiff sometimes emotionally. In that case, the Australian courts have taken an expansive approach as evidenced in Henderson v Radio Corporation Pty Ltd .
The design of the record cover gave prominence to the picture of the Hendersons dancing. Hence, according to Evatt CJ, when it was viewed from a distance, as would be the case in a shop display, it could easily lead to the deception of possible consumers. Consequently, the conduct of the defendant amounted to a misrepresentation that the business of the plaintiff was connected with the business of the defendant.