An attempt by publishing house HarperCollins to produce an autobiography of the Stig, the near mythical driver dressed head to toe in white featured in the BBC’s Top Gear programme, is currently being challenged by the BBC in the High Court. In its public statements the BBC claims that its actions have been motivated by the desire to prevent HarperCollins spoiling the enjoyment of the show for millions of TV viewers, but the commercial reality is that the BBC objects to HarperCollins and the person who plays the Stig trying to make money from a programme, and in particular its reputation, that belong to the BBC.
The difficulty for the BBC here is that this case does not necessarily fit into the legal concepts that usually apply where one business seeks to profit from the intellectual property, reputation or goodwill of another. In most such cases the rival business will have taken a brand name or other element and used it in connection with its goods or services, seeking to benefit from the reputation of the brand and thus damaging the business of the owner of the brand. Whilst it is true that the BBC registered “the Stig” as a Community Trademark back in 2003, unless HarperCollins has been very unwise regarding the way the book is structured it is unlikely that the mere reference to the term “the Stig” in the book will actually infringe the BBC’s trademark rights. This is because there will be no trademark infringement where the mark is used for the purpose of merely identifying goods or services as those of the proprietor of the mark, and it is likely that HarperCollins will have ensured that the rights of the BBC in “the Stig” name are fully acknowledged in the book. In such circumstances the BBC would have to show that such use was not in accordance with honest practices in industrial or commercial matters and the use of the mark without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trademark.
The principal issue in the BBC/HarperCollins case appears to be that of confidentiality and specifically the terms of the contract between the BBC and the individual who plays the Stig. In short, the BBC claims that the individual concerned promised in his contract to keep his identity a secret, and he is now, with the help of HarperCollins, attempting to breach that obligation.
The difficulty for the BBC is that confidentiality obligations under English law will only work with information that is actually confidential; if the information comes into the public domain through no fault of the party subject to the obligations then those obligations will fall away. There have been suggestions in the press that the person who plays the Stig is actually Bristol-based American speedway driver Ben Collins. If this is true, then this fact has been in the public domain since at least early 2009 – http://www.telegraph.co.uk/news/4286448/Who-is-the-Stig-The-answer.html. Whilst the full details of the case have yet to be reported, if Mr Collins is in fact the author of the autobiography there is little doubt that HarperCollins will argue that his identity is no longer a secret and that therefore the confidentiality obligations in his contract relating to his identity no longer apply.
Some reports have suggested that the BBC’s attempt to “gag” the person who plays the Stig might be in breach of his right to free speech under Article 10 of the Human Rights Act. This does not appear to be a particularly strong defence, however, since the obligation to keep his identity secret was freely entered into by him under the terms of his contract.
Fans of the Top Gear programme will remember that we have been here before; the current “white” Stig took on the role in 2003 after the original “black” Stig, the racing driver Perry McCarthy, revealed his identity in an autobiography. Mr McCarthy got the sack, and one wonders why the BBC does not simply do the same again now.
The case continues.
©Taveners
STOP PRESS: this morning the BBC lost its High Court action and the Stig has been revealed as Ben Collins.