We reported on a ‘passing off’ action brought by popstar Rihanna against retailer Top Shop last August – see our note here. The High Court found that Top Shop’s use of Rihanna’s image, taken by an independent photographer present at a video shoot for a single from her ”Talk that Talk” album, without her consent, amounted to passing off because consumers were likely to believe that it amounted to an endorsement by her.

The High Court accepted that there was no general principle that the mere sale of a product using the image of a famous person amounted to passing off. However, it accepted that the use of Rihanna’s image in this case did amount to passing off because the image was so closely connected to the video for a single from her album, which was itself notorious for the fact that the owner of the land on which the shoot had taken place had complained about Rihanna’s clothing (or lack thereof), and her fans would recognise it as being so connected. Furthermore, Top Shop had in the past sought to associate itself with Rihanna and that it was relying on that past association in respect of the sale of its t-shirts.

The Court of Appeal has now confirmed that decision, dismissing Top Shop’s appeal. Lord Justice Kitchin held that a substantial number of purchasers might buy Top Shop’s t-shirts believing it to be authorised by Rihanna and that her fans might well conclude that the image on Top Shop’s t-shirts were authorised publicity shots from her video shoot. He also held that Rihanna had suffered a loss of goodwill to her own merchandise.

Lord Justice Underhill, in dismissing Top Shop’s appeal, thought that neither the connection between the image and the video for Rihanna’s single nor the reliance by Top Shop on its past association with Rihanna were, by themselves, sufficient to amount to passing off but that the combined effect of both factors together was sufficient.

If you require any further information regarding ‘passing off’ or the use of images and intellectual property rights generally, please speak to Christopher Evans in Druces LLP’s Corporate & Commercial team or Julian Johnstone, head of Druces LLP’s Litigation & Dispute Resolution team.

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