How to protect an image

There is in English law no free-standing general concept of ‘image rights’ protecting against the reproduction of a person’s image. However, there are other ways in which an image can be protected, as was seen recently in the singer Rihanna’s successful passing-off action against Topshop. The High Court judgment in Hearst v AVELA is another illustration of this.

The claimant, Hearst, was the successor of the originator of the cartoon character, Betty Boop, and owned UK and Community trademarks for the word BETTY BOOP and a figurative mark. It licensed Betty Boop merchandise. It brought a claim for trademark infringement and an action for passing off against AVELA. AVELA denied infringement, maintaining that it was a legitimate source of Betty Boop imagery in the UK. It claimed that its source was reconditioned old posters and that the imagery was decorative and made no representation as to trade origin so could not infringe or pass off.

AVELA also argued that the trademarks were invalid for lacking distinctive character and that they consisted exclusively of indications of characteristics of the goods for which they were registered…

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