Appeal dismissed in Rihanna v TopShop passing off case
Back in 2013 the High Court held that the sale of substantial numbers of T-shirts bearing a photograph of world famous pop star Rihanna amounted to passing off. This was because although they had permission from the photographer to use the photograph, they did not have Rihanna’s consent to use her image.
Topshop went on to appeal the decision, and contended that the judge made a number of errors in reaching his conclusions. The Court of Appeal have not agreed. They have decided that the judgement in 2013 was correct to find that the sale by Topshop of the t-shirt amounted to passing off and the appeal should be dismissed. You can read of Court of Appeal decision here.
Interestingly, LJ Underhill commented that he regarded the case as close to the borderline. This was because the conclusion in the High Court judgement, that some members of the relevant public would think that the t-shirt was endorsed by Rihanna was based essentially on two things; (1) her past public association with Topshop and (2) the particular features of the image itself, which was apparently posed and shows her with the very distinctive hairstyle adopted in the publicity for the album Talk That Talk. LJ Underhill did not believe that either by itself would have been sufficient but the two features in combination were indeed capable of giving rise to the necessary “endorsement”.
Given that the passing off decision has stood the test of the Court of Appeal, other celebrities may feel more empowered to complain about unauthorised use of their image on merchandise. Designers, manufacturers and retailers alike should consider seeking legal advice at the outset.
If you would like further advice on this or any other patent matter, please contact Martyn Fish at email@example.com or your usual HGF representative or visit our Contact Page to get in touch with your nearest HGF office.