Rhianna wins case against Topshop

Posted by Ben Evans on
In an important ruling on celebrity image rights the Court of Appeal has upheld the High Court's decision to impose an injunction banning Topshop from selling a sleeveless garment featuring the singer Rhianna's photo on the front of it. The photo in dispute was used on the garment without the singer's permission. 

In 2013 Rhianna brought proceedings against the retail group Arcadia (Topshop's parent organisation) for £3.3 million after sleeveless tops were released sporting her image. The image in question was an unauthorised photo taken during a video shoot for her Talk That Talk album in 2011. The photographer who captured the image then licensed the use of the image to Topshop.

The High Court found in Rhianna's favour stating that the singer's unregistered trade mark rights had been infringed by Topshop's unauthorised use of the image. This was because use of the image by Topshop may have led customers into the false belief that she had endorsed/ authorised such use which, of course, is incorrect. This is particularly pertinent as the singer does enter into licensing agreements concerning her image. Further to this, the High Court observed that similar photos to the image used by Topshop had been used in connection with her album and this again may contribute to such false belief.

Topshop appealed. Counsel for Topshop argued that the court was dealing with a "decorated t-shirt" similar to the likes of merchandise featuring images of stars over the decades such as Elvis Presley, Jimi Hendrix and Prince. They further contended that the singer was attempting to use legal proceedings to "claim an image right - that is to say a right to control the licensing of her name and likeness".

The Court of Appeal stated that the High Court had applied the law correctly. That is, that the claimant had sufficient goodwill, the challenged activity involved a false representation and there was a connection between the claimant and goods in issue. This false representation must have played a part in the customer's decision to purchase the top.

The Court of Appeal ruled that the High Court "was entitled to find that the sale by Topshop of the t-shirt amounted to passing off". It was noted by the Court that Topshop was "contending not for the absence of an image right, but rather for a positive right to market goods bearing an image even if the use of that image in particular circumstances to particular customers gives rise to a misrepresentation."

The judges unanimously dismissed Topshop's appeal.

It must be stressed that this case differs from the more run of the mill image rights cases in so far as there was a pre-existing relationship between Rihanna and Topshop and that the image used by Topshop was taken from the publicity materials used to promote her recent album. This increased the likelihood that consumers would mistakenly believe that the product was endorsed by Rihanna. This differs from, for example, a market trader selling t-shirts featuring images of a particular band or footballer where no-one would think that those featured on the t-shirts have anything to do with the t-shirts.

The case does however open up further possibilities for celebrities seeking to protect their image, particular where they are already highly involved in endorsements and the likes. 

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Ben is a dual-qualified Solicitor and chartered trade mark attorney and advises clients on both contentious and non-contentious intellectual property matters.

Ben Evans
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