Why don't celebrities use the internet
Not a good idea: Self-promotion with celebrity names without permission
If celebrities can be won as advertising media, this promises a high sales promotion potential and positive effects on the image. However, not every celebrity is available for third-party advertising or (too) high fees or other remuneration are required. Smaller companies in particular, which are often denied access to famous advertising ambassadors, are repeatedly tempted to take daring remedial measures: even without official permission, a prominent name can quickly be incorporated into their own advertising or linked to an official social media profile. The following article shows why such advertising with famous names on the Internet is legally high-risk.
I. Legal violations when using someone else's name without permission
Prominent artists and other social celebrities combine in their person a high recognition value, certain role model functions and mostly broad social recognition.
Against this background, they are in great demand for advertising goods and services. Advertising companies promise not only image promotion through the connection to celebrities, but also significantly increased sales.
Advertising partnerships with celebrities are not only time-consuming and expensive, but of course also require that the respective celebrity agrees to act as an advertising ambassador for certain products.
To avoid these obstacles, small businesses in particular are considering associating celebrities with your accomplishments without being asked. After all, a short name in the advertising message, a linked social media profile or a name hashtag also ensure the desired advertising effects.
From a legal point of view, however, the use of third-party names in one's own advertising without permission is always inadmissible and not only violates the naming rights of the person concerned, but also regularly constitutes a misleading competition law.
1.) Inadmissible name presumption according to § 12 BGB
Personal names as well as artist names and pseudonyms are protected by name law according to § 12 BGB.
The unjustified mention of names of others for one's own performance fundamentally violates the naming rights of the person concerned.
According to § 12 BGB applies:
If the right to use a name is contested by another person or if the interests of the person entitled are violated by someone else using the same name without authorization, the person entitled can demand that the other person remove the impairment. If further impairments are to be feared, he can sue for an omission.
According to this, the use of a name is generally only available to the bearer of the name as the person entitled. The unauthorized use of a name triggers injunctive relief.
The prohibition includes not only the unauthorized use of someone else's name in legal transactions as one's own, but also its use for the purpose of assignments.
This fact recognized as "name presumption" exists if a third party
- uses someone else's name without authorization,
- thereby triggers an allocation confusion and
- legitimate interests of the bearer of the name violated
Unauthorized use of the name is possible in many ways. An explicit mention of the real name is not required. It is sufficient to only relate the name indirectly (for example via a corresponding link or reference) to one's own services or to one's own person.
According to case law, a confusion of assignment is triggered in the case of unauthorized use of a name if the bearer of the name is related to certain facilities, goods or products with which he has nothing to do.
For this it is sufficient that the wrong impression arises in traffic that the bearer of the name has given the user the right to such use of the name.
The incorrect assignment of a name to a third-party service also indicates a violation of the legitimate interests of the bearer of the name, because he can freely decide for which associations he wants to make his name available.
The presumption of names according to § 12 BGB triggers injunctive relief of the name bearer and can be warned as a name violation.
2.) Misleading about business relationships according to § 5 UWG
Anyone who feeds the names of celebrities into their own advertising without authorization also regularly commits a misleading competition law according to § 5 Abs. 1 Satz 2 Nr. 3 UWG.
By combining one's own offer with someone else's (famous) bearer of the name, the impression is created that the bearer of the name supports the offer, is good or is otherwise ideally or economically interwoven with the advertiser.
If there is no permission to use the name, the advertiser can unfairly gain a considerable competitive advantage because he uses someone else's reputation for his own services and uses this to promote sales.
Competitors as well as business associations and other qualified institutions with injunctive relief can take action against such misleading advertising measures with foreign names.
These claims under competition law exist alongside defense rights under name law, because they pursue other protective purposes.
While name-based injunction claims protect the bearer of the name from exploitation and infringement of interests and can only be asserted by him, the claims under competition law aim to prevent unjustified competitive advantages and ensure the transparency of the basis for purchasing decisions.
3.) Permission unavoidable
Anyone who uses third-party names in their own advertising (be it through direct naming or by way of linking or referral) without having been authorized to do so by the respective name bearer is not only committing an illegal name presumption, but also misleading under competition law.
After all, the reputation of someone else's name is used without justification for one's own economic benefits.
The use of the name is only permitted if the respective name holder has expressly permitted the advertiser to do so. Only the permission of the person entitled can therefore exclude violations of the law.
II. First warnings in circulation
The fact that the above statements are not only of a theoretical nature is made clear by a warning issued by the IT law firm.
The warning is based on a situation in which a hairdressing salon had linked the official Instagram profile of the artist "Robin Schulz" in an advertising post on Instagram, without the profile-owning artist having given his permission to do so.
With reference to an illegal name presumption and the resulting exploitation of reputation for his own economic benefit, the artist demanded that the advertiser refrain from doing so.
The case makes it clear that the exploitation of third-party names and thus violations of legal names and competition law are justified not only when the name is explicitly mentioned, but are already given when a third-party bearer of the name in any manner recognizable for the traffic with a third-party company or his Services is associated.
Anyone who wants to use someone else's names, especially those of celebrities, for their own advertising needs the permission of the name bearer.
If there is no such permission, the use of the name violates the name rights of the bearer and violates the prohibition of misleading. In this case, the foreign name is used for one's own economic advantage and a connection between the bearer of the name and one's own performance is simulated.
Legal violations are not only justified if a foreign name is explicitly spelled out. It is sufficient to indirectly refer to the bearer of the name, for example through a link or reference to him or to a medium officially operated by him (website, social media account, etc.)
tip: Do you have any questions about the contribution? Feel free to discuss this with us in the entrepreneur group of the IT law firm on Facebook.
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