CLASS 46
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WEDNESDAY, 31 JULY 2013
Rihanna relies on passing off in t-shirt dispute
This morning the High Court, England and Wales, gave judgment in Fenty v Arcadia [2013] EWHC 2310 (better known in the press as Rihanna v Topshop). The issue at trial was whether Topshop had committed passing off by using a photograph of Rihanna on t-shirts. Rihanna does hold some trade marks, but none that were able to aid her in this action.
Tags: England and Wales, passing off,
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Rihanna relies on passing off in t-shirt dispute
Rihanna’s complaint was that the t-shirt on sale in Topshop was likely to deceive members of the public into believing that it was merchandise approved by her when it was not. As a modern A-list celebrity, Rihanna is in the business of licensing her name and image for the purposes of merchandising. Examples of products which use the Rihanna brand range from make-up, perfume, calendars, soft drinks, jewellery, books and official T-shirts. She has endorsed a line of clothes at one of Topshop's competitors, River Island.
There has been little authority on the rights of celebrities to protect their image in the UK. For over a decade the seminal decision involved a passing off claim by the F1 driver Eddie Irvine for a radio station using his image to endorse their station. Unlike in the US, there is no personality right in the UK which prevents unfair exploitation if someone even evokes the celebrity’s image, but in the UK if a celebrity can establish they have goodwill in their image and there is a misrepresentation leading to public deception, they are likely to succeed in a claim for passing off. However, the Irvine case only considered the ability to prevent false endorsement and did not consider the extent of protection of merchandising using the celebrity’s image.
Today’s judgment that TopShop passed off Rihanna’s image is unsurprising. The fact that the ‘brand’ Rihanna has so many commercial endorsements and lines of merchandise, including a line of clothing, means the public would expect her to have authorised her image on the TopShop t-shirt when she had not. The judgment, by recently appointed High Court judge Mr Justice Birss, confirms that though there is not a right of personality per se in the UK, celebrities’ images are protectable insofar as they have goodwill in their image and the public is likely to be deceived. Celebrities can continue to exploit their image knowing they will be able to prevent others from riding on their famous coattails though the judge was at pains to stress the mere sale of a t-shirt with an image of someone famous is not an act of passing off itself. What must be established, however, is that there is a misrepresentation.
Class 46 thanks London-based law firm Bristows LLP for furnishing the basis for this note
Posted by: Blog Administrator @ 13.16There has been little authority on the rights of celebrities to protect their image in the UK. For over a decade the seminal decision involved a passing off claim by the F1 driver Eddie Irvine for a radio station using his image to endorse their station. Unlike in the US, there is no personality right in the UK which prevents unfair exploitation if someone even evokes the celebrity’s image, but in the UK if a celebrity can establish they have goodwill in their image and there is a misrepresentation leading to public deception, they are likely to succeed in a claim for passing off. However, the Irvine case only considered the ability to prevent false endorsement and did not consider the extent of protection of merchandising using the celebrity’s image.
Today’s judgment that TopShop passed off Rihanna’s image is unsurprising. The fact that the ‘brand’ Rihanna has so many commercial endorsements and lines of merchandise, including a line of clothing, means the public would expect her to have authorised her image on the TopShop t-shirt when she had not. The judgment, by recently appointed High Court judge Mr Justice Birss, confirms that though there is not a right of personality per se in the UK, celebrities’ images are protectable insofar as they have goodwill in their image and the public is likely to be deceived. Celebrities can continue to exploit their image knowing they will be able to prevent others from riding on their famous coattails though the judge was at pains to stress the mere sale of a t-shirt with an image of someone famous is not an act of passing off itself. What must be established, however, is that there is a misrepresentation.
Class 46 thanks London-based law firm Bristows LLP for furnishing the basis for this note
Tags: England and Wales, passing off,
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