Manchester United's midfielder is considering suing a Chinese toy company after they have marketed a doll dressed as a World War 2 Nazi solider that he claims is based on and is named after the German sportsman.
The dolls, named 'World War II Army Supply Duty - Bastian', are made in China by Dragon in Dream (DiD).
A Hong-Kong firm is behind the range and they have since insisted that the fact the appearance is akin to the 31 year old footballer is "purely coincidental". The toy figure was brought to light by German newspaper Bild, which proclaimed "Our football hero Bastian Schweinsteiger as a Nazi soldier!" On Thursday. DiD added: "The figure is a member of a Wehrmacht supply unit, a so-called 'kitchen boy'."
Schweinsteiger's lawyers are taking action over the sale of the toy dolls, which will be sold in Europe by a Dutch firm at £65 a unit. DiD are also responsible for selling World War 1 toy soldiers as well as James Bond dolls. Patrick Chan, a DiD representative in Hong Kong, told Bild: "We offer no figures based on the football. The resemblance is purely coincidental." He then added: "The figure is based on a typical German. We believe most Germans look like this. Bastian is a common name in Germany."
Media lawyer Ulrich Amelung spoke told German newspaper Bild on whether Schweinsteiger had any grounds to sue the toy company over the range of dolls. He is quoted as saying, "This is a clear violation of Schweinsteiger's personality rights...Everyone has rights to their own image. To see him as a swastika-bearing Wehrmacht soldier also constitutes a gross defamation and insult".
In the United Kingdom, there is no law which explicitly protects 'image' or 'publicity' rights. The terms refer to an individual's right to exploit and prevent others from using his or her name, image, likeness or other essential personality features, such as signatures or nicknames. There is no codified body of law which explicitly protects these rights and parties must rely on other discrete areas for protection. In the age of celebrity, and in light of the lucrative business of personality licensing, the lack of express recognition of image rights in the United Kingdom is somewhat surprising and there are hopes that Parliament will address this issue through legislation in the future.
Individuals seeking to protect their image and personality can do so using a range of causes of action, such as trademark infringement, passing off, breach of confidence, defamation, copyright, data protection and advertising and press complaints codes. However, these causes of action offer varying levels of protection and are rarely considered sufficient.
Until Irvine v Talksport Ltd, where the Formula One racing driver Eddie Irvine successfully brought a passing-off action against UK radio station Talksport, celebrities were generally unable to prevent the use of their image using passing off.
The ability to use the tort of passing off in relation to celebrity merchandising was demonstrated in Fenty v Arcadia, where pop star Rihanna successfully brought a passing-off action against Topshop, which had sold t-shirts bearing a photograph of her without approval. This was the first UK instance of a celebrity successfully bringing a passing-off claim against third parties to prevent unauthorised use of their image on merchandise. Although the artist's action for passing off was successful, it was emphasised at the time that every passing off claim will turn on its own facts and that selling a garment with an image of a celebrity printed on it, is not in itself passing off.Posted by: in: News, Passing Off, Trade Marks