This Article examines the common law tort of Passing-off and the law on Image rights in Nigeria. Whilst the law and doctrines on passing-off are not novel to Nigerian Jurisprudence, the prevalence of this doctrine and laws have predominantly been in respect of goods, names and Logo’s which are tangible. However, there is a dearth of precedents on passing-off of services, which might not necessarily be tangible, in Nigeria. This Article examines the leading precedent on Passing-off of services and Image rights in Nigeria.
Sometime in year 2016, the author of this article was privileged to be Attorney to the Plaintiff in an action which served as the leading precedent that propagated municipal case law on image rights and passing-off of intangible services. Nneoma Anosike v Wema Bank Plc- FHC/L/CS/1331/16
The Plaintiff in the above referenced Suit was and remains a model of International repute. The Plaintiff, in her teens, successfully contested in many National pageants in her country, Nigeria and had a reputation of ‘elite looks’. Owing to her many victories and accolades, she was selected to represent Nigeria in the International Elite Model Look competition which was held in China, in November 2013. Thereafter, the Plaintiff was engaged to be brand ambassador of ‘Hennessey Whiskey’ and Aquafina Water, which is made by Pepsi cola. The Plaintiff’s fame grew and drew the attention of international modeling agencies, such as the USA based modelling agency, Ford Models, New York. The Plaintiff signed a contract with Ford Models and moved to New York to continue her modelling Career.
Sometime in April 2016, a ‘responsible corporate organization’, the Defendant bank- Wema Bank, uploaded an image of the Plaintiff beside their corporate logo, with the words; Be Yourself, everyone else is taken. This image was publicized on the internet and on the Defendant’s social media pages, without the consent or knowledge of the Plaintiff. This publication was widely seen and got the attention of the Plaintiff’s employers, Ford Models Inc. The publication clearly contravened the express provisions of the Plaintiff’s contract with Ford Models, which prohibited the likeness, photograph, voice, performance or participation in social networking sites for advertising purposes without the express authorization of ford Models first had and obtained. Thus, the Plaintiff sued the Defendant for violation of her image rights and for Passing-off her services.
The author/attorney to the Plaintiff in electing the remedies and preparing the pleadings, found very few local materials contemporaneous with a claim for image rights. However, there were some useful contemporary foreign materials on the subject in jurisdictions such as the United Kingdom and India to back a cause of action based on image rights and Passing-off of services. The case was eventually commenced and founded on the tort of passing-off of services and breach of image rights, which was tied to the right to privacy in Section 37 of the Nigerian constitution.
When the case was listed on the docket of the Court, both Counsel to the parties appeared, and the case was ‘mentioned’. Before the Attorney to the Plaintiff concluded the summary of the case, the judge remarked: “I had a matter with similar facts in 1991 whilst I was still a member of the ‘bar’, in private practice, and I sought for a ‘cause of action’ to found the claim on and I could find none”. He further remarked that there was no need to proceed to trial, as he didn’t feel any cause of action existed in support of the wrong complained of. The matter eventually proceeded to trial after series of legal arguments, on resumed adjourned dates, between the judge, who played the devil’s advocate and the attorney to the Plaintiff.
The Defendants built their Defence on the fact that the advert was purely motivational and educational, and was not profit oriented. The Defendant also raised the Defence of copyright to the picture and the Defence that the image was already in the public domain and did not infringe on the Plaintiff’s image rights, privacy or correspondence.
At the close of trial, Counsel filed their addresses and the argued same. The Plaintiff relied on the English authority of Irvine v TalkSport Ltd (2002) EWHC 367, where a photograph of Irvine, a famous Formula 1 racing driver was used without his consent by Talksport, and the picture had been doctored to show him holding a radio bearing the words Talk radio. The English Court in that case held that ‘a valuable reputation existed in the business of Irvine’s endorsements and that the action of TalkSport amounted to a misrepresentation that their goods had been endorsed by Irvine which diminished the exclusivity of his endorsement with another company’. Attorney to the Plaintiff also relied on other English authorities such as Robyn Rihanna Fenty v Arcadia Group Brands Limited (2013) EWHC 2310(CH), IRC v Muller & Co. Margarine (1901) AC 217, 223 and Reckitt & Coleman Products v Borden (1990) 1 AER 873.
The Attorney to the Plaintiff also relied on persuasive Indian authorities emanating from the Supreme Court of India such as ICC Development International Ltd v Arvee Enterprises (2003) 26 PTC 245 Del and RR Rajagopal v State of Tamil Nadu JT 1994 (6) SC 514. Recourse was also had to several municipal laws and subsidiary legislation, as well as the International Trademark Association Bulletin of 15th July 2002 Vol. 57 No. 13.
The summary of the Plaintiff’s argument was that the Plaintiff had through cogent pleadings and credible evidence, established the gist of passing-off and had proven a false projection of endorsement on the part of the Defendants by the unauthorized advertisement of the Plaintiff’s likeness and image, which were averse to the image rights of the Plaintiff and her line of business.
On the Defendant’s part, they argued along the lines of lack of Jurisdiction, absence of monetary benefit and copyright ownership.
In the Judgment of the Federal High Court delivered on 27th march 2018, the Court happily found a very reasonable cause of action had been established by the Plaintiff, founded on Passing-Off of services and the contravention of image rights. Consequently, the reliefs sought by the Plaintiff were granted and damages were awarded. It is equally pertinent to note that there is now an emerging trend of cases emanating from the Federal High Court of Nigeria where the Courts have upheld image rights. Reliance is placed on Mrs. Amudat Adeleke v. Atiku Abubakar & Ors- FHC/L/CS/193/19