10 December 2013 | Reading time: < 1 minute
Rihanna recently sued the fashion retailer Topshop in the Chancery Court for the tort of passing off. Topshop had been selling t-shirts with a picture of Rihanna that had been taken by a freelance photographer and it was alleged that customers were led to believe that this was official merchandise endorsed by Rihanna. Rihanna did not have any grounds to sue based on copyright infringement or breach of privacy law and therefore relied on the tort of passing off.
Three little words.
Three elements need to be established in order for the tort of passing off to successful: Goodwill, misrepresentation and damage. Rihanna successfully demonstrated goodwill through her high-profile public image and that damage was sustained through topshop’s misrepresentation. Justice Birss did not accept that customers would have believed that the t-shirt was official merchandise, but still found that topshop had made a misrepresentation. With Rihanna having successfully established each of the elements needed for passing off, Topshop was ordered to immediately cease selling the unauthorised t-shirts. Topshop was further ordered to pay Rihanna’s legal costs, which were close to £1 million and to pay £200,000 in the interim.
Practical steps to avoid passing off.
Retailers and designers need to be cautious when it comes to the use of pictures of celebrities on their merchandise, so as to not to risk misleading customers into thinking that the particular product is endorsed by that celebrity. Retailers should seek legal advice when considering the use of celebrity images associated with their products and implement policies that will safeguard their interests.