The Court of Appeal has delivered its decision in the litigation between Rihanna and Topshop (Rihanna v Topshop ( EWCA Civ 3)), upholding the trial judge's finding that Topshop's unauthorised use of Rihanna's image on a T-shirt was passing off.
Lord Justice Kitchin confirmed the basic principle that in English law there is no "image right" or "character right" which allows a celebrity to control the use of his or her name or image. On the other hand, no-one may represent his goods or services as being the goods or services of another person, so causing that other person injury to his goodwill and so damage in his business (of celebrity). The law of passing off protects goodwill and it prevents one person passing off his goods or services as those of another.
Where an individual can show that
- he or she has a significant reputation or goodwill,
- that the activities of the defendant amount to a misrepresentation that he or she has endorsed or approved the goods or services of which he complains, and
- that these activities have caused or are likely to cause him damage to his goodwill or business,
the law of passing off offers protection. The law will not allow others to so use goodwill as to reduce, blur or diminish its exclusivity.
However in every case, it is the relevant facts, as demonstrated in the evidence before the court, which will be critical to the outcome of such a claim.
Lord Justice Underhill commented that Rihanna's case was "close to the borderline" but it was (for Rihanna) on the right side of the line. The crucial factors were Rihanna's past association with Topshop and the particular features of the image itself.
Topshop had made considerable effort to emphasise its connection with various famous stylish people, including Rihanna. For example, Topshop ran a competition for the prize of a personal shopping appointment with Rihanna at the London store. While this was not complained of, it was relevant background for the later misrepresentation regarding Rihanna's image.
Also relevant was the striking image of Rihanna that was used by Topshop. The oversized image of Rihanna looking straight at the camera, with her hair tied above her head in a scarf, was similar to images that had been used for her recent Talk That Talk album and associated video.
Kate Swaine, partner in the Brands team at Wragge Lawrence Graham & Co, explains:
"This case demonstrates a classic balance of interests by the courts, based on all the relevant circumstances. Topshop, was, in effect, 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 the particular circumstances gives rise to a misrepresentation.
"Lord Justice Kitchin stated that to permit this would be to 'sanction a trade which results in the deception of the public'. Although there is no image right in this country, the law of passing off prevents such deception."