The High Court has held that sales of T-shirts bearing a photograph of the popstar Rihanna, without her approval, constituted passing off.
The case centred on the sale by Topshop of T-shirts bearing an image of the popstar Rihanna. Topshop had a licence from the photographer to use the image but did not have permission from Rihanna herself. Rihanna argued that the sales of the T-shirts without her consent constituted passing off. She maintained that the sales would be damaging to her goodwill, particularly given her associations with the fashion world.
The case was not about image rights — a concept not recognised in any distinct, free-standing way in English law — nor was it about privacy or about copyright. It was solely about passing off and the three elements needed to substantiate a claim for passing off, namely: a goodwill or reputation attached to the relevant goods or services; a misrepresentation by the defendant to the public (whether or not intentional) leading, or likely to lead, the public to believe that the goods or services offered by him are those of the claimant; and damage to the claimant, arising from the erroneous belief that the source of the defendant’s goods or services is the same as those offered by the claimant…
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