Character Merchandising – The Case of Daddy Lumba and His “Son”

On 6th February 2018, citifmonline.com reported 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”.

Daddy Lumba, according to the report, alleged that DL Junior had been professing to be his son and had gone to the extent of impersonating him to get gifts from people.

Daddy Lumba traced DL Junior’s history of impersonation to a reality show that aired on TV Africa named ‘Just Like You’ in 2010. The reality TV show gave artistes the platform to mimic their favourite celebrities. DL Junior, on that show, imitated Daddy Lumba.

The essence of Daddy Lumba’s claim is that since the name Daddy Lumba is exclusively associated to him within the music industry, DL Jnr’s imitation and misrepresentation has affected his reputation, business and goodwill and the brand as a whole.  But is there merit to his claim?

The suit by Daddy Lumba raises the issue of character merchandising under Ghanaian law. According to the World Intellectual Property Organization (WIPO), character merchandising is 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 and sportsmen.

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 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. 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 (a real person) from the role he plays (the 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 are 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.
3. Image sourced from http://celebritiesbuzz.co/daddy-lumba-takes-man-claims-son-court/