Character merchandising is big business and any case concerning its legal protection is bound to arouse considerable interest. This is certainly true of the recent Court of Appeal decision in Elvis Presley Trade Marks [1999] R.P.C. 567, where the character concerned was “the King” himself. Earlier, in the “Ninja Turtles” passing-off case, Mirage Studios v. Counterfeat Clothing Co. Ltd. [1991] F.S.R. 145, the High Court had apparently endorsed the view that the public's awareness of merchandising practices means that it will assume that products carrying the likeness or name of a celebrity (real or fictional) will come from one “genuine” source. This decision, together with the provisions of the 1994 Trade Marks Act which swept away previous anti-trafficking provisions and liberalised the licensing regime, seemed, to many, to herald a new dawn for the protection of character merchandising, However, the Elvis Presley decision suggests that character merchandising in the UK will remain relatively unprotected compared to other jurisdictions.

Injunctions against pickets and demonstrators are not common. There appear to be no reported cases in England between 1899 (when Llandudno Urban District Council tried to stop a clergyman from preaching on the beach) and the disputes in the London Docks in 1972. In Hubbard v. Pitt, the use of injunctions again came to the fore, when a firm of estate agents obtained interlocutory injunctions restraining members of a tenants' campaign from picketing their premises as a political protest.

In the Court of Appeal recently, Nourse L.J. declared Credit Lyonnais Bank Nederland NV v. Burch to be “as clear a case for the setting aside of a transaction against a mortgagee as it was possible to think of”. Curiously, however, relief on the basis of Barclays Bank pic v. O'Brien was given although: (i) the relationship between the surety and principal debtor, of employee and employer, clearly falls outside that of an “emotional or sexual nature” (and no such relationship existed in fact) particularised in O'Brien as one factor giving rise to a lender's constructive notice of the transaction's potential invalidity and; (ii) the Bank twice wrote to the proposed surety advising of the unlimited nature of the charge and of the desirability of obtaining independent legal advice; moreover, (iii) there is surprising dicta suggesting that the nature and extent of the manifest disadvantage in the transaction to the surety may be so severe that, to be enforceable, the lender must not only urge independent advice, it must insist upon it, and must reasonably believe that the advice was obtained, was competent and even, that it was followed.

Edward Christian has been treated unfairly by history. As the first Downing Professor of the Laws of England and the first lecturer on common law in Cambridge, Christian suffered the chronological misfortune of launching his academic career in the wake of Blackstone's extraordinary achievement. Until recent years Blackstone's brilliance has obscured the intellectual originality and historical significance of all his successors.1 Moreover, Christian's misfortune in following Blackstone was aggravated by a lack of professional success at the Bar and by a seemingly abrasive personality that won him a number of eloquent enemies whose ridicule and comical anecdotes have long outlived their target.

The determination of the true measure of damage in any individual case is seldom easy. It depends upon considerations of causation, and causation is primarily a matter for philosophic rather than legal inquiry. Hume was not prepared to adopt the ordinary conception of causation. ‘It were infinite for the law to judge the causes of causes and their impulsion one of another,’ said Bacon. In a modern case the same thought has been expressed in the words ‘Causation is not a chain but a net.’ Faced with metaphysical uncertainty the lawyer must find some base on which to build his structure, and he does it by following the course of the pragmatist and asking of any particular decision: Does it work ? If it does he has to fit it into a scheme which should be consistent with a number of other decisions which also work, but are not always governed by the strict rules of logic.