There has been much coverage in the press of the now famous Fenty v Arcadia (Rihanna v Topshop) t-shirt case.
Rihanna initially objected to the sale of a t-shirt by Topshop featuring an image of her face in 2012. Topshop had not asked Rihanna’s permission to use the image on its product. Rihanna subsequently brought proceedings against Topshop on the grounds of passing off. It was claimed that shoppers purchasing the t-shirt would believe that the item was endorsed by Rihanna. In fact, the star had no connection whatsoever to the t-shirt or the retail chain at that time.
It was decided by Mr Justice Birss that the sale of the t-shirt by Topshop amounted to an act of passing off.
The decision has since been appealed by Arcadia (Topshop) and the Court of Appeal has now issued its decision. The appeal has been dismissed and the Court of Appeal once again found in favour of Rihanna. The sale of a t-shirt bearing her image, without her permission, amounted to an act of passing off.
It was noted in the decision that: “it is not a necessary feature of merchandising that members of the public will think that the products in issue are in any sense endorsed by the celebrity or creator of the character in issue. What is required, instead, is in the first place that the claimant has a relevant goodwill and that the impugned activity involves a false representation that there is a connection between the claimant and the goods in issue of a relevant kind, that is to say that the claimant is materially responsible for their quality. This false representation must have a part in the purchaser's decision to buy”.
Whist a celebrity does not have an automatic right to prevent where and how their image is used, it would seem that provided they have sufficient cause, they may be able to prevent unauthorised ‘merchandising’ via an action in passing off.