For fashion companies who use images of celebrities on their clothing, the message is clear. Unless you have the celebrity’s agreement to do so, such use is at your own risk. This is because the law will prevent parties from using the reputation of others, without authorisation, to make a profit.
Topshop had put a picture of Rihanna on its T-shirts. While the photographer had authorised Topshop to use the photo, Rihanna had not. Rihanna argued that shoppers were likely to think (wrongly) that she had either collaborated with Topshop or endorsed the t-shirts, and the High Court had decided that this was passing off.
Rihanna won this battle because she was able to prove her goodwill and reputation as a style icon and that Topshop used this to their advantage to sell t-shirts.
The original judgment was based predominantly on two facts:
The history between Topshop and Rihanna. Before selling the t-shirts, Topshop had run a competition offering winners a personal shopping appointment with Rihanna. Later, when Rihanna paid a visit to the flagship store, Topshop spread the word to its 350,000 twitter followers. (Topshop could not have predicted that this would later be used against them.)
The particular photo chosen for the t-shirt. The photo used on the t-shirt was taken during her “We Found Love” video shoot. The t-shirts were being sold at a similar time as the release of the video and her “Talk That Talk” album, potentially leading shoppers to think that the t-shirts formed part of her marketing campaign.
The court was persuaded that the combination of Rihanna and Topshop’s history, and the particular circumstances surrounding the sale would mislead shoppers into thinking that the singer was involved. In the absence of either of these facts, the result may have been very different.
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