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Rihanna vs Topshop – the legal eagles have their say

Today Rihanna won a legal dispute against Topshop, over the use of her image on T-shirts being sold by the retailer. Drapers rounds up some responses from legal experts.

Simon Bennett, partner at the Fashion Law Group at Fox Williams, said: “The case was very fact-specific and Rihanna won because of the nature of her position as a style icon and the timing and the use of the image on the Topshop T shirt. Just because Rihanna won does not mean every celebrity will win an action of this type; these actions are by their nature very fact specific.  This will not, however, stop people from trying.”

Gary Assim, partner of Shoosmiths, said: “While the judge stated that there is no ‘general right by a famous person to control the reproduction of their image’, Rihanna’s image, and the reputation in it, were the important factors in this case. It is likely to spark further debate about whether formal image rights should be available or recognised under English law. At present, only Guernsey has a formal registration system for image rights.

“Interestingly, Topshop sells in Guernsey, and it is highly likely the Rihanna T-shirts were on sale there. Consider, then, that Rihanna had registered her image in Guernsey.  She could have added infringement of registered image rights to her claim, which could have led to a landmark judgment. Any other celebrities out there with similar claims? Are the goods you are complaining about sold in Guernsey? If so, you might consider registering your image in Guernsey and adding it to your claim in England.”

Jeremy Hertzog, head of IP at law firm Mishcon de Reya, said: “The legal principle – made very clear by the Judge – in the UK remains… Put simply, there is nothing unlawful in selling garments bearing the images of well-known celebrities without the approval of the celebrity in question. Therefore, any intention by Rihanna to create a monopolistic right to control all use of her image on clothing in the UK has failed.

“This decision does not change the landscape of passing off in the UK.  It offers clarity for retailers on the very narrow circumstances - a perfect storm, if you like - where the Court, in the absence of any evidence of consumer confusion, might be persuaded to consider that a substantial number of consumers will believe that a garment bearing an image of an individual is in fact authorised by that individual, and that they may be motivated to purchase the garment based on that false belief.

 “Topshop is perhaps a victim of its own popularity with celebrities, as this popularity - and Topshop’s popularity with Rihanna in particular - was held to enhance the likelihood of consumers believing the garment to be authorised.  Topshop will be seeking permission to appeal.”

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