Trade

Passing off - supplementing unofficial football commentary with pre-recorded sound effects from another match - injunction refusedBritish Broadcasting Corporation v Talksport Ltd: ChD (Blackburne J): 20 June 2000

The claimant, the sole holder of live radio broadcasting rights to the European Championship football tournament ('Euro 2000') in the UK, brought proceedings in passing off alleging that the defendant had falsely represented that it would be providing live coverage of Euro 2000 matches when in fact it was only offering unofficial 'off-tube' coverage of those matches (where the match commentator watches the match on a TV monitor other than at the stadium).On 12 June the claimant applied for interim injunctions restraining the defendant from persisting in the conduct complained of and the defendant gave undertakings that it would not represent that any 'off-tube' broadcast of a Euro 2000 football match, accompanied by ambient sound, contained live coverage or that the defendant held official or live broadcasting rights in relation to any such match; and that it would use all reasonable endeavours to ensure that its presenters and commentators made it clear that coverage was both 'off-tube' and unofficial.

The defendant's commentators regularly broadcast a disclaimer that their coverage was not provided by the claimant, was unofficial and was 'off-tube'; however, the claimant sought a further interim injunction preventing the use by the defendant of recordings of crowd noises taken from another match, as being incompatible with the undertakings given by the defendant.Geoffrey Hobbs QC and Philip Roberts (instructed by Sarah Jones, BBC Litigation Department) for the claimant.

Barbara Dohmann QC and Robert Howe (instructed by Herbert Smith) for the defendant.Held, dismissing the application, that despite the defendant's disclaimer an ordinary listener might think the broadcast was live owing to the skillful dubbing of ambient sound on to the commentary and the fact that the disclaimer did not mention that the noises were pre-recorded; but that in order to obtain an interim injunction in relation to an allegation of passing off, the claimant had to show that it had a prima facie case on each of the essential elements of the tort; that there could be no goodwill (an essential element of the tort) in words such as 'live sports broadcasting' which were merely descriptive of the product or service provided; and that since the effect of granting the relief sought would have been particularly severe for the defendants, but refusal would have caused little or no loss to the claimant, the balance of convenience strongly favoured not granting the order sought.