Lag (1978:800) om namn och bild i reklam : Om användning av imitationer och look-alikes i marknadsföring

Sammanfattning: Max Verstappen, renowned Formula 1 driver, claimed in Dutch court that the use of a look-alike in a commercial had violated his right to his own image. In July 2022, the Dutch Supreme Court, the Hoge Raad, confirmed that a look-alike can constitute a portrait image under domestic law, which can also be considered to violate the subject's right to his own image. The purpose of this paper is to investigate whether, and if so, to what extent, the Act (1978:800) on Names and Images in Advertising can be considered applicable when traders use an imitation or look-alike of a person in their marketing. The paper examines in more detail how the identification grounds in the Act – with a particular focus on the use of images – should be understood. In this sense, the decision from the Dutch Supreme Court serves as an illustrative example of the issues and balances of interest that are likely to arise in a similar situation. It follows from the paper that it is more likely than not that the use of imitations and look-alikes falls within the scope of protection of the Act on Names and Images in Advertising. However, it is still unclear to what extent such use can be considered unlawful. The requirements, name and image, should – to some extent – be interpreted extensively. Against this background, it has been shown that the law could also be applied to grounds for identification other than the name or image, in the strict sense, of the person concerned – as long as it can be shown that the trader intended to emphasise the particular person depicted. In the application of the law, the element of freeloading in the act seems to be of paramount importance. Therefore, it should not matter if it is clear to the viewer that the look-alike or imitator is not actually the person referred to. Some limited application of the law can be assumed in view of the risk of collision with the constitutionally protected freedom of speech. However, it has not been shown that there are any direct obstacles to the coverage of imitations or look-alikes by the Act.