In a story that made headlines in both Asia and Europe last week, footballer Bastian Schweinsteiger announced he would take legal action against a Hong Kong company selling a Nazi action figure bearing his likeness. In addition to the marked facial similarity, the dolls produced by Dragon in Dream (DiD) are labelled “World War II Army Supply Duty – Bastian”. DiD has denied basing the figure on Schweinsteiger’s image, and as of today it remains available online. In a jurisdiction which has not traditionally provided strong personality rights protection to celebrities, it could be an uphill battle for the Manchester United midfielder. Moreover, a review of DiD’s online store shows that there are other celebrities – and, potentially, film studios – who may not like what they find there.
A spokesman for DiD, Patrick Chan, told the German newspaper Bild that any resemblance to Schweinsteiger was purely coincidental, explaining: “The figure is based on a typical German. We believe most Germans look like this. Bastian is a common name in Germany.” Manufactured in Guangdong, the dolls feature swastikas and other Wehrmacht insignia and retail for around $120. The company’s website crashed intermittently following the flood of media attention, but is back online and still offering ‘Bastian’ for sale.
World Trademark Review has learned that DiD was involved in a somewhat similar case three years ago. Shortly after the death of Steve Jobs, a Hong Kong-based company called In Icons caused a stir when it debuted a hyper-realistic figurine of the Apple founder priced at $99. According to multiple reports at the time, the manufacturer of that item was DiD. Tandy Cheung of In Icons was originally defiant, maintaining that “Steve Jobs is not an actor, he’s just a celebrity. There is no copyright protection for a normal person.” But shortly afterward, in response to what the company called “immense pressure” by lawyers from Apple and the Jobs estate, the product was pulled.
The Schweinsteiger case is obviously different in that the depiction of any person as a Nazi potentially has a very negative impact on that individual’s reputation. In addition, the makers of the Jobs doll were explicitly marketing it as such, while DiD denies that their figurine is based on any real person.
Hong Kong currently has no codified body of law that protects the rights of personality. Remedies have traditionally been sought under trademark or copyright laws, the tort of passing off, defamation, violation of advertising laws and breach of confidence under contract law, but according to one survey of major cases, the jurisdiction “does not offer strong protection of personality rights to celebrities”.
According to Deacons partner Charmaine Koo, any claim for passing off would first require the plaintiff to show that he is in the business of licensing his image. Schweinsteiger reportedly earns millions of dollars per year through lucrative endorsement deals with adidas, Right Guard and Funny-Frisch crisps, which would seem to help his case. Passing off, however, also requires a likelihood of confusion, and ironically, the alleged depiction of the footballer as a Nazi soldier could actually hurt his case. After all, it is hard for the average person to believe that Schweinsteiger would consent to being portrayed in such a potentially inflammatory way.
A defamation suit could be another potential avenue, but it would require Schweinsteiger to show that DiD had made some sort of false statement that had hurt his public reputation.
The fact that DiD apparently did not obtain the permission of Schweinsteiger or the Jobs estate in two previous cases raises questions about some of the other offerings on its website, a number of which are clearly based on film characters. “Koulikov”, a Second World War Soviet sniper figurine, is a dead ringer for actor Ron Perlman’s character Kulikov in the 2001 film Enemy at the Gates, while “Ryan”, a US 101stAirborne soldier, is clearly modeled on Matt Damon’s title character in Saving Private Ryan. If in fact DiD has not obtained a licence from Paramount Pictures, the international distributor of both films, the studio could potentially have a copyright case, according to Koo. “If the figurines are dressed like movie characters, reproducing images or costumes from the movies could be copyright infringement.” However, Koo adds, “Copyright doesn’t actually protect the celebrity’s likeness, only artistic works.” Moreover, the fact that the costumes may be historically accurate military uniforms further complicates things.
DiD lists distributors in nine countries, including the US, UK, China and Japan (but not Germany), so Schweinsteiger’s representatives may have several different options for enforcement. In Hong Kong, however, where litigation is very expensive, the case seems far from clear-cut, and may not be worth pursuing unless DiD’s product is causing irreparable reputational or financial damage. Schweinsteiger’s full-throated denunciation of DiD’s product should ensure that that doesn’t come to pass, whatever happens in the courts.
