Barbadian singer Rihanna has recently won a battle with clothing retailer Topshop in relation to T-shirts sold bearing her image.
The singer sued Arcadia (Topshop’s parent company) for $5 million (£3.3 million). Her lawyers claimed the T-shirts, which featured a photograph of the singer taken during filming of a music video in Northern Ireland in 2011, may have duped fans into thinking that they were approved by Rihanna and damaged her reputation and that sale of the T-shirts amounted to passing off.
Lawyers for Topshop argued that the claim by Rihanna was an unjustifiable bid to establish a free standing image right in the UK.
In making his decision, Mr Justice Birss referred to the fact that the image on the T-shirt showed Rihanna with the same hairstyle and headscarf as images for her recent album cover and suggested that fans might therefore conclude that the T-shirts formed part of the marketing campaign for that album. The Judge also pointed out that Topshop has links with several famous stars, including Rihanna, which again could indicate that Rihanna had approved the T-shirts. Furthermore, the fact that the T-shirt was a fashion garment as opposed to a lower quality T-shirt would not, in the mind of a purchaser, rule out the possibility that Rihanna endorsed the product.
As a result, Mr Justice Birss held that Topshop’s sale of the T-shirt amounted to passing off. He said that a “substantial number” of buyers were likely to have bought the T-shirt based on a “false belief” that it had been approved by Rihanna which was damaging to her goodwill. He also held that Rihanna would have suffered damage in respect of sales lost to her merchandising businesses and loss of control over her reputation in the fashion sphere.
The Judge was keen to point out that this is not a case which will open the floodgates to passing off actions by celebrities each time their image appears on a garment or other product without their permission – the decision turned on the facts of the case. This case does, however, highlight the need for careful consideration of the risks before using the image of a celebrity.
In response to the decision, Topshop said it was “surprised, disappointed and perplexed” and that “there was no intention to create an appearance of an endorsement or promotion”.
The level of damages to be awarded to Rihanna has not yet been determined but Arcadia has been ordered to make an interim payment of £200,000 towards Rihanna’s legal costs pending a full damages assessment.
For those regretting not buying a Topshop Rihanna T-shirt before they were taken off the shelves, Rihanna has her own fashion line at River Island. After a quick search online it appears that the “Rihanna for River Island” collection does not include any tops featuring an image of her face. Members of Clarion’s IP team are happy to confirm, however, that a T-shirt bearing an image of all solicitors in the department is being developed and will hopefully be on sale in time for Spring…
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