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Q: Passing Off - same name

I have used the same stage name for years. Recently I learned that another act was performing under the same name. I am a London based singer, they are a West of England group. I am a member of Equity, they are not. Can I do anything to make them change the title of their band?

A: Your stage name has the same protection as any other business name in similar circumstances. If, as would seem to be the case, you were using the name before the other party concerned, you can apply to the court for an injunction to restrain them from continuing to use the same name, if they refuse to discontinue its use voluntarily.

You can also claim damages for any actual or estimated financial loss which you have sustained. The amount of damages may well be affected by the fact that you and they are based in geographically distant localities However, if you or they are operating nationally or internationally (or are likely to become so) the place where you are each respectively 'based' will obviously have less relevance.

If you do take them to court for an injunction in an action for 'passing off 'their stage name as yours, you will have to satisfy the judge that their use of your name has caused, or is likely to cause, injury to your reputation or goodwill, whether intentionally or otherwise. Geographical spheres of operation will obviously be relevant in this context as always will be the extent of your own reputation in the acting profession and the fact that they are a group of performers whereas you are a single individual.

They may seek to argue that their reputation is such as to enhance rather than detract from your own. That, if proved, may assist them in relation to damages but not an injunction. You will also need to establish the likelihood of confusion in the minds of the public and the best way of doing that is by calling witnesses (if you can find any) who have in fact been confused into thinking that the other act was you or vice versa.

If you can show that the other act obtained bookings which they would not have obtained if the party making the booking had not thought them to be you, then you might even be able to persuade the court to order them to account to you for the profits they have earned from such bookings.

If you can provide malice on the part of the other individuals concerned, which is not easy, you may also have a good cause of action for malicious falsehood, where assessment of damages is not based on compensation for financial loss but for injury to reputation.

You could ask Equity to intervene on your behalf, but it has no influence over non-members (unless they might want to join at a future date) and therefore might not wish to become involved.

In the circumstances which you have described, I should be surprised if you fail to get a satisfactory settlement very quickly after notification of your claim.

First published January 1995