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. The concept of a business, as mentioned before was interpreted in its widest sense as including professions and callings. Hogan v Koala Dundee Pty Ltd case
In this particular case the courts have taken an essential approach in Hogan v Koala Dundee Pty. 24 The defendants used images extracted from the plaintiffs’ film ‘Crocodile Dundee’ without obtaining any authorization or getting a license and particularly, they used the name of the movie ‘Dundee’ on their products. According to Pincus J, it was ‘possible to bring a passing off action in respect of an image, including a name, unconnected with any business at all’. This was an innovative and broad proposition.
However, Pincus J’s view is contrary to previous Australian authorities’, as it suggested that liability need not be based on misrepresentation, and it would suffice if there was a misappropriation of commercial reputation. This approach has not been followed in subsequent Australian cases. In Pacific Dunlop Ltd v Hogan the Full Federal Court maintained the need to illustrate a misrepresentation and damage to goodwill, rather than the broader notion of misappropriation explicated in Hogan v Koala Dundee.
The requirement of misrepresentation was consequently maintained in Talmax Pty Ltd v Telstra Corp Ltd and others involved the production and selling of t-shirts printed with a design owned by the rock group INXS. Passing off was established, as the designs had the tendency to mislead purchasers who would think that the t-shirts had been approved by the rock group. This is despite the fact that the market stalls selling the t-shirts stated that the products were ‘genuine bootleg’. This is because it was not sufficient to prevent a misrepresentation, which misled many purchasers who thought that they were buying goods, endorsed by INXS.