Fenty & Ors v Arcadia Group - Rihanna Gets Shirty With Topshop

Summary

In this High Court case ([2013] EWHC 2310 (Ch)), Birss J held that the UK high-street fashion chain Topshop committed an act of passing off when they sold T-shirts emblazoned with a photograph of the pop singer Rihanna. Key to the decision was that there was misrepresentation because consumers might have purchased the T-shirt under the false belief that it was authorised by Rihanna. This conclusion depended on the similarity of the photograph to official album covers, Topshop's particular position in the fashion retail world and its use of celebrities for promotions in the past.

Background

In March 2012, Topshop started selling a T-shirt with an image of Rihanna on it. Topshop had obtained a licence from the independent photographer who took the photo but had nothing from Rihanna herself. There is no free standing right in England for a famous person to control the reproduction of their image. Without a case under copyright, a passing off action was brought by Rihanna against Topshop.

Decision

The law of passing off in England requires the three elements of goodwill, misrepresentation and damage.This case turned on the question of misrepresentation.

It was agreed that Rihanna's image on a product does not necessarily give rise to a misrepresentation. However, the claimants pointed to Topshop's previous efforts to emphasise connections between the store and famous stylish people, such as Rihanna.

Topshop ran a competition in 2010 to win a personal shopping appointment with Rihanna. Rihanna also visited Topshop in February 2012, which Topshop chose to publicise by tweeting to their 350,000 Twitter followers. Birss J agreed that this showed that Topshop were seeking to take advantage of Rihanna's position as a style icon.

The defendants were dealt another blow when Birss J considered the image chosen for the T-shirt. He acknowledged that the image on the T-shirt bore similarities to images of Rihanna from one of her albums and from the music video for one of her singles. These similarities, the judge ruled, would have been noticed by Rihanna's fans and thus the image used on the T-shirt could have been viewed as part of the marketing material for the album and single.

The judge did agree with the defendants that it was important to note that there was no indication...