The Stig, confidentiality and trade marks

I’ve been following the recent story about a battle between the BBC and HarperCollins over whether or not The Stig’s real identity can be revealed in his planned autobiography. For the purposes of this blog, I’ll refer to him as “Mr X”.

For those that are not a fan of the BBC’s Top Gear programme, The Stig is the show’s “tamed racing driver” – known only by his white overalls and white helmet (which he never removes). The BBC maintains that revealing his identity would “spoil viewers’ enjoyment of the show.”

What’s the issue?
At play here is a conflict between the contractual obligation of confidence given by the Mr X in his contract with the BBC and Mr X’s attempt to cash in on the fame of the character that he plays. Top Gear and The Stig are very lucrative for the BBC, but newspaper reports suggest that Mr X does not do as well out of this as his fellow presenters.

However, an autobiography about being The Stig is likely to be hugely successful.

Psuedonyms and trade marks
Interestingly, there is no (legal) reason why The Stig could not publish his autobiography under a pseudonym. Section 77 of the Copyright, Designs and Patents Act 1998 specifically provides that moral rights (the right of an author to be named every time a work is published) can be asserted using a pseudonym. However, “The Stig” is a registered trade mark of the BBC, and therefore any attempt to publish an unauthorised book under that pseudonym would infringe that trade mark.

So Mr X is rather stuck. Contractually, he cannot publish his autobiography under his real name, and trade mark law is likely to prevent him from publishing his autobiography under his on-screen alter ego.

This may seem unfair, but The Stig brand is owned by the BBC, and Mr X is contracted to the BBC to play that role under a condition of anonymity. The BBC is therefore simply doing what any brand owner would do to prevent third parties from cashing in on, or damaging, its brand.

So what next?
It will be interesting to see how the battle between the BBC and HarperCollins pans out. A Google News search shows plenty of newspapers revealing Mr X’s suspected identity, and HarperCollins’ argument is that his identity is now no longer confidential. Whilst this might make a common law obligation of confidence no longer enforceable, it may not be as simple as that for a contractual obligation.

I see that the case has been adjourned for a week. I expect that those discussions will lead to the autobiography being published under the pseudonym of “The Stig” (with the BBC getting a cut of the royalties) or Mr X being allowed to publish his autobiography under his own name, but on the condition that (as with Mr X’s predecessor, The Black Stig) he leaves the show and is replaced by a new Stig.

Anyone want to have a guess at what colour he will be?

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