The Court of Appeal has upheld the ruling of the High Court which found that Topshop’s sale of t-shirts bearing Rihanna’s image without her consent amounted to passing off.
In 2012 Topshop sold t-shirts with the image of Rihanna in its stores and online. Topshop had obtained a licence from the holder of the copyright in the photograph but had not obtained permission from Rihanna to use the image.
Rihanna brought proceedings against Topshop before the High Court on the basis that a substantial number of people buying the t-shirt would assume that she had endorsed it when this was not the case, and as such, the action by Topshop amounted to passing off.
The High Court found that in this particular case goodwill did exist, there was misrepresentation and damages given Rihanna’s extensive endorsement activities. In addition, Rihanna had been previously associated with Topshop and the t-shirt image used was similar to the image used in the publicity for her sixth album and on promotional merchandising. In combination this all meant that Rihanna’s fans might believe that the t-shirt bearing an image which “is not just recognisably Rihanna, [but] it looks like a publicity shot for what was a recent musical release”, was endorsed by Rihanna when this was simply not the case.
The Court of Appeal stated that there is no ‘image’ or ‘character’ right per se in the UK. As such, the claimant in a case such as this must show on the evidence that he has a relevant goodwill, the activities of the defendant amount to a misrepresentation that he had endorsed or approved the goods or services of which he complains, and that these activities have caused or a likely to cause him damage to his goodwill and business. Rihanna was able to do this in this case and the Court of Appeal maintained the decision of the High Court.
This case highlights the extent to which modern day celebrities protect and exploit their brands through extensive endorsements, use on merchandising and high profile collaborations with well-known retailers.
The decision is a timely reminder that if use of a celebrity’s image is likely to mislead the public into believing the product is officially endorsed and this is not the case, this could amount to passing off.
The question now remains, will Topshop accept the latest blow or appeal the decision, if given permission by the Supreme Court – a tall order!