Fawlty Towers and Faulty Towers. Is there an infringement of intellectual property rights?

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John Cleese is reportedly considering legal action against an Australian theatre company which he claims is infringing his intellectual property rights in the show “Fawlty Towers”.

The show in question is called “Faulty Towers the Dining Experience” and has been staged by Interactive Theatre International since 1997. The show combines interactive performances with a three-course meal. It features the characters, situations and names associated with the original Fawlty Towers.

Cleese maintains that he has been aware of the show for a year but had no idea of how successful it was. He claims that the show is good – as it should be: “After all, they start with a lot of advantages: the basic concept … 40 years of unpaid publicity, the characters’ personalities, the characters’ names, the characters’ stress, the characters’ dialogue … twelve funny episodes to which they make reference, plus all the catch-phrases”. Cleese maintains that neither he nor his co-writer Connie Booth have been approached to give their consent to the use of their intellectual property rights in the show.

Faulty Towers the Dining Experience styles itself as a “loving tribute” to the original Fawlty Towers and adds that the original TV scripts are not used in its production. It has rejected Cleese’s allegations as “misleading and inaccurate”.

The dispute has added relevance because Fawlty Towers is about to start life as a stage show, with its world premiere set for August.

It is not clear on what basis Cleese would sue. The most obvious cause of action would be for passing off given that Cleese reportedly is not the registered proprietor of the trade mark FAWLTY TOWERS. (A trade mark infringement claim, if one were to be brought, would most likely be brought under section 10(2)(b) of the Trade Marks Act 1994 on the basis that the marks were confusingly similar and used in respect of similar goods or services.) To succeed in a passing off claim, Cleese would need to demonstrate:

  • a goodwill or reputation attached to the show FAWLTY TOWERS;
  • a misrepresentation by Interactive Theatre International to the public (whether or not intentional) leading, or likely to lead, the public to believe that the services offered by them are those of Cleese; and
  • damage arising from the erroneous belief that the source of Interactive Theatre International’s services is the same as those offered by Cleese.

A successful claim in copyright would require Cleese to demonstrate copying or reproduction of a substantial part of the scripts or performances from the original FAWLTY TOWERS.