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On Thursday, Rihanna preserved her legal victory against Topshop over the fashion retailer’s sale of an oversized sleeveless jersey that featured her image.
The pop superstar won her lawsuit in July 2013 when a British high court justice declared her a “style icon” and ruled that Topshop was liable for essentially implying an endorsement. Although the U.K. has no publicity rights statute — the type of image-protecting law that just this week formed the basis of a California lawsuit over a Richard Pryor “swag” t-shirt — it does have a law that protects against “passing off” goods and services as those of another.
Rihanna, who has made deals in the past with H&M, Gucci and Armani, worried that consumers would get the wrong impression about her imprimatur. Even though she presented no evidence of actual consumer confusion, her lawyers did point to Topshop’s publicity material touting that Rihanna was wearing the retailer’s items as well as tweets like “Ridiculously excited! @Rihanna is in our Oxford Circus store as we tweet. Ah, wonder what she’ll buy…”
Topshop has defended itself by attempting to distinguish between endorsement and merchandising, espousing the theory that consumers could be attracted to a Rihanna jersey by the way it looked without assuming it was licensed. To the retailer, the Rihanna jersey smacked of character merchandising and cited a prior case involving Elvis Presley’s image on toiletries to show the difference.
In Thursday’s appellate ruling, the justices are satisfied that the judge knew the proper distinction, made no errors of judgment and that Rihanna had satisfied the elements of bringing a “passing off” claim by showing that she had acquired significant goodwill in relation to fashion clothing insofar as purchasers believing that she was responsible for the quality of her branded merchandise. And further, by showing that Topshop had made a false representation that could play a role in the purchasing decisions of consumers.
“Many of her fans regard her endorsement as important for she is their style icon, and they would buy the t-shirt thinking that she had approved and authorised it,” states the opinion. “In short, the judge found that the sale of this t-shirt bearing this image amounted to a representation that Rihanna had endorsed it.”
The appeals court emphasizes the fact-dependent nature of this type of case, noting that all celebrities won’t always win lawsuits over merchandise featuring their images. Nor does it give Rihanna an absolute right to prevent those selling garments carrying her image.
Any claimant, continues the opinion, must establish “the likelihood of confusion of a substantial number of consumers but not necessarily all of them. Here the t-shirts in issue were being sold through Topshop’s stores. It was therefore plainly relevant to consider potential customers who were both fans of Rihanna and prepared to shop in a Topshop store. So also the judge was bound to consider and take into account the activities of Topshop in publicising and promoting its connection with Rihanna over a period of time.”
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