- The defendant’s action was intentional.
- The defendant must have acted for the purpose of commercial gain.
The Canadian courts have examined this position and in the case of Krouse v Chrysler Canada
Ltd (1973) 13 CPR (2d) 28 it was noted that where a person has marketable value in their
likeness and it has been used in such a manner that suggests an endorsement of a product then
there is ground for an action in appropriation of such a person’s personality with the case of
Athans v Canadian Adventure Camps (1977) CAN H1 1255, having the view that personality
right included both image and name.
Referencing the above position of the common law to the instant matter, from the evidence of the
defendant as stated by Dw1 the defendant herein engaged the services of the instant third party to
develop and brand communication materials including fliers, posters, billboards and brochures
for purposes of promoting a product which the defendant had developed through concerted
advertising consequently the third party developed a concept, procured the right materials and
upon completing the necessary art work which was agreeable to the defendant, the same was
rolled out to promote the defendant’s new product called ‘Agro Save’ which featured among
others the image of a woman in an orchard of oranges which was placed on billboards, flyers and
brochures. The third party states that this is the essence of Exhibits D3 and D7 procured from the
New Vision. However, a closure scrutiny shows that it is indeed Exhibit D9 being referred to
with the third party developing the final image Exhibit D9(3) after merging Exhibit D9(1) and
D9(2) and coming up with the final product which was accepted by the defendant. The third
party states that at the time of doing the art work it had no knowledge of the existence of the
plaintiff making the plaintiff and her witnesses to be liars in court for all of them insisted that the