Today marks the release of the highly-anticipated FIFA 21 video game, in which football fans can play virtual games using the digital avatars of over 100 football players from teams past and present. The game allows signing players to teams they never played for in the "real world".
Fourth tier English football team Stevenage F.C. has gone viral due to its sponsorship by Burger King, with Burger King's logo appearing on the virtual strips of household name footballers within the game. This blog explores whether in-game footage of celebrity footballers wearing Burger King's logo may fall foul of the law of false celebrity endorsement.
Burger King sponsorship
In summer 2019, Burger King entered into a sponsorship deal with Stevenage F.C., a small team at the bottom of the English football leagues. Under the deal, the Burger King logo was printed on the front of the Stevenage strip. This meant it would also be included on the team's football strip in the then-upcoming video game FIFA 20, in which gamers could sign famous football players to teams including Stevenage.
Burger King's promotional offer of free burgers for every goal scored in FIFA in the Stevenage strip propelled the team to the most-used team in the game. In the run-up to the sequel, FIFA 21, Stevenage and Burger King have advertised their sponsorship with gameplay clips from the FIFA series in which virtual depictions of world-famous players like Lionel Messi and Cristiano Ronaldo wear the Stevenage strip with the Burger King logo.
Celebrity endorsement is a decades-old marketing tool taking on a new life with the rise of viral marketing and social media. Such endorsements are increasingly regulated by national authorities like the Competitions and Markets Authority and the Advertising Standards Authority's CAP Code.
However, Messi, Ronaldo, and the other footballers placed in Stevenage strips by FIFA fans do not professionally endorse Burger King. Is the use of these images therefore a false celebrity endorsement?
False endorsement
This summer, the issue of false celebrity endorsement was brought back into the spotlight. Reports revealed that the images of figures as diverse as Sir Richard Branson, Holly Willoughby and the Argentine National Football Team were used without permission to promote risky financial products.
The modern law of false endorsement in the UK was established by the landmark case of Irvine v Talksport Ltd [2002] EWHC 367 (Ch). F1 driver Eddie Irvine sued radio operator Talksport for sending a brochure to its potential advertisers with an edited image depicting Irvine holding up a portable radio labelled "Talk Radio". For the first time, the court recognised that celebrities' reputations and goodwill could be just as important as that of a business. They extended the principles of "passing off" to establish the test for false endorsement:
- The claimant had a significant reputation or goodwill at the time of the endorsement; and
- The other party created a false message which would be understood by a "not insignificant section of [their] market" that the product advertised was endorsed by the claimant.
Irvine could prove these, so the court found in his favour.
Is Burger King's use of famous footballers' likenesses a false endorsement?
In Burger King's marketing of its Stevenage sponsorship, the first prong of the false endorsement test is definitely fulfilled: the famous footballers depicted have a significant reputation as athletes and as celebrities.
However, the key difference between false endorsement and Burger King's use of virtual depictions of famous players in clips from FIFA is that very few people will mistake it for a genuine endorsement by the actual footballers.
These images are used in two places: within the FIFA game itself, and in traditional marketing. Burger King's adverts within the game will be understood by gamers as a virtual combination of footballer and team done without the real person's involvement.
Outside the game, Burger King uses FIFA footage to explain its sponsorship of Stevenage. The context of the video game is obvious, and most viewers will understand the footballers in the game are simulated and controlled by the player. Regardless, sponsorship is a well-known marketing device: football players are not assumed to personally endorse the business of every logo on their strip.
For these reasons, the vast majority of people will not mistake Burger King's marketing using FIFA clips to be a genuine celebrity endorsement. It is therefore unlikely there will be the "not insignificant" portion of fooled consumers needed to establish false endorsement.
It is instead a clever campaign that enabled Burger King to get its brand in front of millions of football fans and gamers without needing to pay to sponsor a top-tier team.
How can we help?
You do not have to be a celebrity of Lionel Messi's stature to encounter an issue in this area of law. If you require assistance or advice relating to sponsorship agreements, brand endorsement, false endorsement, passing off, or intellectual property generally, please do not hesitate to get in touch with us or your usual Brodies contact.
Contributors
Partner
Trainee
