CORNER:Determining the correct face value

This is a strange one. If your face or likeness was on a box of cereal and it was therefore used by the cereal company to sell its product, don't you think that either you or one of your friends would notice this and point it out to you? Especially if it is a major brand cereal?

This is the story of Russell Christoff, who unbeknownst to him became the face of Taster's Choice Instant Coffee in 1998. Back in 1986 when he was modeling, Christoff posed for pictures that showed him looking longingly at a cup of coffee. He entered into an agreement with Nestlé so that they could use the photos for some coffee to be sold in Canada only. That was the extent of the agreement.

Fast forward to 1998, and Nestlé decides to "change the face" if you will of Taster's Choice Instant Coffee, taking off the present visage and putting on a new one. While looking for the appropriate face of the future, a Nestlé employee found Christoff's photos in the archives, and the company decided to use one of them.

The problem here is that no one told Christoff. Now we flash forward to June 2002, and Christoff is minding his own business shopping at a Rite Aid in San Francisco and he happens to walk past the section where they sell coffee, and what does he see — his face. He then learns that they have been using his face for the last six years to sell their coffee in this country.

Upon further investigation, Christoff learns that his face is being used to sell coffee in Mexico as well, but there they have taken his photo and darkened his complexion and added sideburns to give him a more swarthy look.

All of this of course led to a lawsuit, and Christoff was awarded $15 million by a jury in early 2005.

Unfortunately for Christoff, the Second District Court of Appeal wiped away the award in June of this year, ruling that team Christoff did not introduce sufficient evidence to prove that his face led to $15 million in additional profits for Nestlé.

The justice writing the opinion for the Court of Appeal is Candace Cooper, one of my all-time favorite bench officers. Cooper acknowledged that Christoff's image may have helped Nestlé sell more coffee, however " … in order to recover profits on this basis, Christoff must present such evidence." Sounds fair to me.