## Facts

- Robert “Bob” Krouse, a well-known Canadian Football League player for the Hamilton Tiger-Cats, wore jersey number 14.
- Chrysler Canada Ltd. and its advertising agency distributed a promotional cardboard scorecard, the “Plymouth Pro Football Spotter,” to assist fans in tracking football scores.
- The promotion included a photograph of a Tiger-Cats player shown from behind wearing number 14; the courts accepted that football fans could identify the player as Krouse.
- Krouse did not consent to the use of the photograph and alleged the promotion implied his endorsement of Chrysler.
- Krouse claimed the use impaired his ability to commercially exploit his personality (including potential endorsements with other automobile manufacturers).
- The trial court awarded Krouse $1,000 in general damages on an appropriation/passing off theory but found no proof of specific loss.
- On appeal, Chrysler sought reversal and dismissal of the action.

## Issues

1. Whether common law recognizes a tort protecting commercially valuable “personality” (appropriation of personality) and, if so, what elements are required.
2. Whether Chrysler’s use of the image in the “Spotter” constituted an actionable appropriation of Krouse’s personality, including implied endorsement and resulting injury.
3. Whether the promotion amounted to passing off by falsely suggesting an association or endorsement and causing damage within a common field of activity.

## Decision

- The Ontario Court of Appeal allowed Chrysler’s appeal and dismissed Krouse’s action.
- The court accepted, in principle, that an individual may have protectable, property-like interests in the commercial value of personality.
- On the facts, Chrysler did not appropriate Krouse’s personality because the promotion did not sufficiently trade on Krouse as an endorser and did not imply his endorsement.
- The court found no evidence of demonstrable harm to Krouse’s ability to market his personality.
- The court rejected passing off because there was no actionable misrepresentation and no common field of activity between a professional athlete and an automobile manufacturer.

## Legal Principles

- Common law may recognize a property-like interest in the commercial value of a person’s identity (“personality”) capable of supporting a claim for appropriation.
- Liability for appropriation requires more than recognizability and commercial context; it turns on whether the defendant directly exploits the plaintiff’s persona in a manner that suggests endorsement.
- The plaintiff bears the burden to prove actual, demonstrable injury, including harm to the plaintiff’s ability to commercially exploit the personality interest.
- Passing off requires a misrepresentation in the course of trade that is likely to cause damage to the plaintiff’s goodwill; absence of a common field of activity and absence of a misleading endorsement message defeat the claim.

## Conclusion

The Court of Appeal recognized personality rights in principle but held that a promotional depiction of a recognizable athlete, without implied endorsement and without proof of harm to commercial marketability, does not establish appropriation of personality or passing off.


Krouse v. Chrysler Can. Ltd., 1 O.R. (2d) 225 (Ont. C.A. 1973)