Author: Nathanael Young 

Since my last blog The Stig Issue: BBC battles to keep driver veiled, the BBC has lost its application against HarperCollins to keep the Stig’s identity secret. We will not know the reasons immediately, since the judgment will be given in private. However, since Formula 3 driver Ben Collins was in court for part of the case, the BBC’s refusal to confirm whether or not he is the Stig now seems a little coy. By relying on confidentiality, they have more or less confirmed the truth of Collins’ planned disclosures.

Despite this set back, it may still be the BBC proceed with their case. Failing to obtain an interim injunction to stop something being published is not the same as losing at trial. Generally, the court decides whether to grant such injunctions on the basis of the balance of convenience, and not based on who it thinks will win. The BBC might still go on to win damages.

Meanwhile, public speculation will shift to another issue. What will happen to the Stig now?

Author: Nathanael Young

For years, the identity of Top Gear’s the Stig has been the subject of speculation and amateur detective work. Now, with publisher HarperCollins set to reveal all in a new book, the matter has been passed to the lawyers. The BBC has applied for an injunction to halt publication, and both parties were in the High Court on Monday over the issue.

At present, further details of the case are hard to come by. It seems the BBC is alleging that the publication breaches confidentiality agreements entered into in connection with the show, and that HarperCollins is standing by its right to publish the mysterious driver’s story. No doubt more will emerge in due course, although how much depends on the outcome of the litigation.

To the public, the interesting question may be the face behind the trademark black visor, but there are likely to be serious legal issues in a case of this sort. Secrets are not usually kept for long under the constant glare of media publicity; they have to be carefully guarded. There can be little doubt the BBC has given serious thought to the issue from Stig’s first appearance in 2003, or there would now be nothing confidential to protect.

In English law, secrets of this sort will be protected by the law of confidence. To stop disclosure, someone will generally have to show the information is confidential in nature, that it was disclosed in confidential circumstances and that there is a threat to use it to their detriment. The best way to satisfy this test is by having a carefully drafted confidentiality agreement.

In this case, HarperCollins is not likely to have received their information from the BBC, so there is unlikely to be a signed agreement. It may be the BBC will instead allege the publisher is obliged not to use information they received from the unknown driver, since they knew or ought to have known that was confidential.

There is precedent for this; since when Michael Douglas and Catherine Zeta-Jones sued Hello! magazine for using unauthorised images of their wedding, there was again no confidentiality agreement between the magazine and the couple. In that case the source of the photographs must have been a guest or member of staff with a hidden camera. However, it was held that Hello! were liable for using the images obtained in breach of confidence.

Cases of this sort may seem far from the world of business. However, all businesses will have confidential information about their processes, customers, suppliers and systems. Sometimes, this information can be the single most valuable thing the business owns. It makes sense to control and protect it, and this means carefully worded confidentiality clauses are a must.

After all, some things are best kept under your hat – or helmet.

Author: Nathanael Young

Attack and Counterattack

Recent news stories have highlighted the lengths FIFA are prepared to go to in protecting its brand.

Last Monday’s Holland v Denmark game saw 36 female supporters wearing orange mini dresses participating in an ambush marketing stunt for the Dutch beer brand Bavaria.

Ambush marketing, the practice of finding a way to promote a brand at a high profile event without paying a sponsorship, has long been a marketing strategy of Bavaria. At the 2006 world cup in Germany, 1000 fans wearing branded underwear were denied entry to a Holland game, and more recently it has been targeting the Dutch national team matches.

FIFA has promised to come down hard on any brand trying to highjack the tournament and this was the case last Monday. The group of women were ejected from the stadium and two of the 36 were later arrested. In addition to this, the ITV pundit Robbie Earl has been sacked by ITV as it has emerged that some of the tickets used by Bavaria were from the ex-Jamaica and Wimbledon midfielder’s  allocation;  which he was  prohibited from redistributing to third parties.

Logo or No Logo

With the world cup now in full swing, businesses around the country have included references to the event in their advertising and promotional activity in a bid to cash in on its popularity. Some of those are official sponsors, who have paid millions to be able to do so; however, a considerably large number of businesses haven’t paid for the privilege. They simply seek to associate their business  with the  pride and passion that the tournament evokes, with the ultimate aim of increasing sales. However it does come with some risks attached.

Many business may not be aware of the extent to which FIFA have rights over and above ordinary trademark or copyright protection in South Africa.  FIFA has every motivation to stamp out such practices, which threaten the sponsorship revenues from their official partners. It already has trademark protection over a number of words, like ‘2010 FIFA World Cup’ and images, such as its official emblem for the tournament. The host country has gone so far to keep FIFA and its sponsors happy, it has created a new list of prohibited marks under special legislation, even including the use of ‘2010’ on its own, which is not a trademark. 

For businesses operating in the UK, the situation is rather less draconian.  However,  there are reports that FIFA has obtained a ruling against a sports bar near the Loftus stadium using phrases such as ‘World Cup 2010’.

Things to Remember…

 The most important guidance is to always avoid the using of any FIFA artwork or branding – such as its logo or the ‘man kicking ball’ official 2010 world cup emblem. For more information and guidance about when you can cannot use World Cup related terms, FIFA has provided a Public Information Sheet which states what is acceptable and the terms of use.
Use of the term ‘World Cup’ or similar phrases is less likely to be an issue, although each situation is different, so it is important to take legal advice in order to avoid prosecution.