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Axl Rose may have undermined own case over Dr Pepper stunt

Website statement could imply acceptance

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Jude Tonner, a trademark attorney with Pinsent Masons, the law firm behind OUT-LAW.COM, said that if this was a UK case, Rose's statement in March could undermine his own case.

"If Rose had stayed silent, he probably had a good case over the unauthorised press release. It's probably a trademark use and so in the UK there would be an argument of both trademark infringement and passing off," said Tonner. "We've seen cases like this before, notably when TalkSport used an image of Eddie Irvine without permission."

In 2003, racing driver Eddie Irvine won damages from radio station TalkSport Radio after it used his image in an advert without his permission.

"As a consequence of what appeared on the band's website, Dr Pepper will surely argue that Axl was happy and had given his permission," said Tonner. "It implies that he consents to the use. However, under UK law, the onus would be on Dr Pepper to prove this."

Earlier this year, rapper 50 Cent sued fast-food chain Taco Bell in the US after it invited him to change his name in a letter sent to newspapers.

"For one day this summer, change your name either 79 Cent, 89 Cent or 99 Cent by showing up to one of our more than 5,600 locations nationwide and rapping your order in the drive thru with your new moniker," it said.

50 Cent argued that Taco Bell used his image and trademarks to promote itself without his permission.

Tonner said that Rose's case might be limited to any detriment caused to the Guns N' Roses brand as a consequence of fans' ill-feeling towards the promotion.

Gutman's letter demands full-page apologies in national newspapers, an extended offer to consumers and "an appropriate payment" to Rose and the band.

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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