The common law

In recent times, after the intermingling of sport, media and business, many sports have received more publicity than before. This has played a significant role as many professional athletes gained global recognition and became more famous even more than some state presidents. This led to a situation whereby business firms use prominent athletes for advertising their goods and services. These businesses make use of the names, images or likeness of athletes that have distinguished themselves in their different areas of sport to market their products successfully.

For instance, Rogaih Federar’ image adorns Nike tennis clothes, suit and makes them more acceptable to consumers. All the above arrangements have to be legalized by having authorization from the celebrity who is going to serve as a model. Nevertheless, there are some illegalities that can be perpetuated by using the name, image or likeness of the celebrity for commercial gain without having authorization or permission.

However, celebrity athletes can limit the use of their ‘valuable personality’ and image through trademarking their image as well as bringing an action in the tort of passing off. Also, they can protect such personality by taking an action for breach of the misleading and deceptive conduct provisions (s 52 and s 53) of the Trade Practices Act 1974 (TPA). Therefore, this essay will examine how adequate the common law is and also, statute law in preventing the unauthorized exploitation of an athlete’s name, image or likeness for commercial gain by others.

It is divided into three sections, firstly it will discuss the establishment of the law of Passing Off through the common law and examine how adequate is. Secondly, it will discuss the s52 and s53 of the TPA in relation to protection of athlete’s name, image or likeness from being exploited illegally. Finally, it will discuss the available remedies through the tort of Passing Off and TPA.