## Facts

- Mr. and Mrs. Henderson were internationally known professional ballroom dancers and instructors with a strong reputation among ballroom-dancing professionals.
- Radio Corporation Pty. Ltd. produced and distributed a dance-music gramophone record titled *Strictly for Dancing, Vol. 1*.
- The record cover displayed a photograph of the Hendersons in a characteristic dance pose without their consent and without payment.
- The defendant initially did not know the photo depicted the Hendersons, but after being informed and verifying the claim, it refused to stop distributing the covers.
- The record was marketed to ballroom-dancing instructors and serious dancers, a group familiar with the Hendersons’ professional standing.
- Uncontradicted expert evidence indicated the cover would likely mislead ballroom-dancing instructors into believing the Hendersons recommended, approved, or were associated with the record.
- The Hendersons sought equitable relief restraining further use of the cover image, requiring withdrawal of offending covers from distribution, and damages.

## Issues

1. Whether passing off requires the plaintiff and defendant to operate in a “common field of activity” or directly competing trade.
2. Whether unauthorized use of a well-known professional’s photograph on a product can constitute a misrepresentation of endorsement or association sufficient to found passing off.
3. Whether likely deception of a relevant class of consumers (rather than the general public) can establish actionable misrepresentation and justify injunctive relief.

## Decision

- The Full Supreme Court of New South Wales dismissed the defendant’s appeal and affirmed the injunction granted at trial.
- The court held that passing off did not depend on the parties being in a common field of activity.
- The court found the Hendersons had protectable goodwill in their professional reputation and image among ballroom-dancing instructors.
- The use of the Hendersons’ photograph on the record cover was likely to mislead the relevant audience into thinking the record was endorsed by or associated with the Hendersons.
- Injunctive relief restraining further distribution and requiring withdrawal of offending covers was upheld; the reported discussion emphasized injunctions more than any final damages award.

## Legal Principles

- Passing off protects goodwill against misrepresentations that lead a substantial segment of the relevant public to believe the plaintiff endorses, recommends, or is associated with the defendant’s goods or services.
- A strict “common field of activity” or direct product-market competition is not a prerequisite where the defendant’s conduct exploits or threatens the plaintiff’s goodwill through likely deception.
- Misrepresentation may be assessed by reference to the perceptions of the relevant class of consumers for the product, including a specialized professional audience.
- A person’s professional name, reputation, and image may function as indicia of goodwill capable of protection through passing off when used to suggest authorization or endorsement.
- Equity may grant injunctive relief to prevent ongoing or irreparable damage to goodwill where false association deprives the plaintiff of control over how their reputation is commercially used.

## Conclusion

The court treated the Hendersons’ image and professional reputation as protectable goodwill and held that placing their photograph on a dance-music record cover was a likely deceptive suggestion of endorsement to the relevant audience, supporting passing off and injunctive relief despite the parties operating in different lines of business.


Henderson v. Radio Corp. Pty. Ltd., 60 S.R. (N.S.W.) 576 (N.S.W. 1960)