IBNI

Source: Nana Akwasi Awuah Esq

On 6th February, 2018, citifmonline.com reported on its online news portal that the “celebrated Ghanaian highlife artiste, Charles Kwadwo Fosu known in showbiz as Daddy Lumba, has sued Kwame Anokye also known in music circles as Daddy Lumba Jnr. for impersonating his brand”. According to the report, “Daddy Lumba filed a lawsuit at the Accra High Court alleging that Kwame Anokye also known as DL Junior professes to be his son and even impersonates him to get gifts from people”.

In the news report, Daddy Lumba is said to allege that DL Junior has a history of impersonating him since his appearance on a TV Africa-produced reality show, ‘Just Like You’ which was produced in 2010 – this was a reality TV show which gave artistes the platform to mimic their favourite celebrities. DL Junior, on that show imitated Daddy Lumba. Daddy Lumba avers in his Statement of Claim that since the name Daddy Lumba is exclusively associated to him within the music industry and that no one else goes by that name, DL Jnr’s imitation and misrepresentation has affected his reputation, business and goodwill and the brand as a whole.

The suit by Daddy Lumba falls under a category of intellectual property rights known as character merchandising. According to the World Intellectual Property Organization (WIPO), character merchandising can be defined “as the adaptation or secondary exploitation, by the creator of a fictional character or by a real person or by one or several authorized third parties, of the essential personality features (such as the name, image or appearance) of a character in relation to various goods and/or services with a view to creating in prospective customers a desire to acquire those goods and/or to use those services because of the customers’ affinity with that character.”

A character may be fictional or real. A fictional character may be human (for example, Tarzan or James Bond) or non-human (for example, Mickey Mouse or Bugs Bunny). A character as a real person will include famous personalities in the film or music business, sportsmen etc. There are two main types of character merchandising: personality merchandising and image merchandising. Personality merchandising may be of fictional characters or real persons. Image merchandising is a hybrid of the two.

Personality merchandising of fictional characters involves the use of the essential personality features (name, image, etc.) of fictional characters in the marketing and/or advertising of goods or services.

Personality merchandising of real persons involves the use of the essential attributes (name, image, voice and other personality features) of real persons (in other words, the true identity of an individual) in the marketing and/or advertising of goods and services. In general, the real person whose attributes are “commercialized” is well known to the public at large; this is the reason why this form of merchandising has sometimes been referred to as “reputation merchandising.”

Image merchandising on the other hand involves the use of fictional film or television characters, played by real actors, in the marketing and advertising of goods or services. In those cases, the public sometimes finds it difficult to differentiate the actor (real person) from the role he plays (character portrayed). Sometimes, however, there is a complete association and the real person is referred to and known by the name of the character. In the case of image merchandising, goods or services will be marketed with the merchandising of distinctive elements of a film or series (appearance and dress of the actor when playing the character coupled with memorable aspects of a scene for example using scenes of the Black Panther movie.

In character merchandising therefore, it is mainly the essential personality features easily recognized by the public at large which will be relevant. Those personality features are, for example, the name, image, appearance or voice of a character or symbols permitting the recognition of such characters.

According to WIPO, as at 1994, no country, including Ghana, had enacted legislation on the protection of character merchandising. It is however important to note that the Protection Against Unfair Competition Act, 2000 (Act 589) offers some form of protection against character merchandising. Section 1 of Act 589 says that “an act or a practice, in the course of industrial or commercial activities, that causes, or is likely to cause, confusion with respect to another person’s enterprise or its activities, in particular, the products or services offered by that enterprise, constitutes an act of unfair competition.”

According to the law, confusion may be caused in respect of a celebrity or well-known fictional character. Section 2 of the law also provides that “an act or a practice in the course of industrial or commercial activities, that damages or is likely to damage the goodwill or reputation of another person’s enterprise or its activities constitutes an act of unfair competition, whether or not the act or practice causes confusion.”

Again under the law, damaging another person’s goodwill or reputation may, in particular, result from the dilution of the goodwill or reputation attached to a celebrity or well-known fictional character. Therefore, protection is offered against conduct that is likely to cause or actually causes confusion in the mind of the public in respect of a celebrity’s, a fortiori, a character’s trade or enterprise.

The law also offers protection against conduct that is likely to cause damage or actually causes damage to the goodwill or reputation of a character – and it matters not that such conduct causes confusion or not in the mind of the public.

Daddy Lumba’s case is therefore a test case on these particular provisions of Act 589. This case will thus be interesting to follow as it will potentially set down a legal precedent for future cases of such nature in Ghana.

References: 1. Character Merchandising, WIPO, Report by the International Bureau, December 1994, WO.INF/108.

2. Character Merchandising, Nishant Kewalramani and Sandeep Hegde M, Journal of Intellectual Property Rights, Vol. 17, September 2012.

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