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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fenty & Ors v Arcadia Group Brands Ltd & Anor [2015] EWCA Civ 3 (22 January 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/3.html Cite as: [2015] FSR 14, [2015] EWCA Civ 3, [2015] EMLR 12, [2015] 1 WLR 3291, [2015] WLR 3291 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
The Hon Mr Justice Birss
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE KITCHIN
and
LORD JUSTICE UNDERHILL
____________________
Robyn Rihanna FentyRoraj Trade LLCCombermere Entertainment Properties, LLC |
Claimants/Respond-ents |
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| - and - |
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Arcadia Group Brands LimitedTopshop/Topman Limited |
Defendants/Appellants |
____________________
for the Claimants/Respondents
Geoffrey Hobbs QC and Hugo Cuddigan (instructed by Mishcon de Reya)
for the Defendants/Appellants
Hearing dates: 18/19 November 2014
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Lord Justice Kitchin:
Introduction
video
shoot for a single from her "Talk That Talk" album. Rihanna is looking directly at the camera with her hair tied above her head with a headscarf. It is, as the judge thought, a striking image and similar images had been used by Rihanna in connection with the Talk That Talk album. This particular photograph was, however, taken by an independent third party photographer. He, as owner of the copyright in the photograph, licensed the use of the image to Topshop.
vehicles)
thereupon issued these proceedings and alleged that, whatever may have been the position in relation to the copyright in the photograph, the use of her image in relation to fashion clothing was not licensed and that a substantial number of people buying the t-shirt would think that she had endorsed it when, in fact, it was not connected with her at all. Rihanna contended that Topshop's activities therefore amounted to passing off.
Background
very
large merchandising and endorsement businesses and over the years has had endorsement agreements with Nike, Gillette, Clinique and LG Mobile. The merchandising business was originally managed by a company known as Bravado and in 2010 and 2011 goods authorised by Rihanna and sourced through Bravado were available in Topman stores which are owned and operated by companies within the group of which Topshop forms a part. Since 2012 this business has been managed by another company called Live Nation which expects to earn significant sums from the sale of conventional merchandise associated with her.
very
active in this sphere and has made considerable efforts to promote an association in the public mind between herself and the world of fashion, as the judge explained at [41]:
"…She promoted H&M's Fashion Against Aids clothing collection in January 2008, which involved her designing her own t-shirt, which was publicised as part of that exercise. In June 2008 through Combermere she entered into an agreement with Gucci in which she promoted Gucci goods including clothing, accessories and jewellery. She exercised control over which garments she would wear. In June 2011 she entered into an agreement with Armani relating to a women's wear collection for Autumn/Winter 2011 and Spring/Summer 2012. The Armani collaboration produced two capsule collections. Capsules are groups of garments produced by one designer which can be worn together in different combinations. One collection involved two styles of jeans, a leather biker jacket, a canvas bag and two t-shirts, one emblazoned with an image of Rihanna. The other had a similar collection of garments, with four t-shirts."
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views
about fashion. If they see Rihanna wearing or approving an item of clothing then they think it has been endorsed by her. In all these circumstances the judge found that Rihanna and her associated companies had acquired a significant goodwill in relation to fashion clothing. He put it this way:
"46. The claimants have and had in 2012 ample goodwill to succeed in a passing off action of this kind. Furthermore in 2012 the fact that an item of clothing was a more design led fashion garment, rather than a lower quality simple plain t-shirt, would not be understood to rule out, in the mind of a purchaser, the idea that it was a Rihanna endorsed product or an item of authorised Rihanna merchandise. The scope of her goodwill was not only as a music artist but also in the world of fashion, as a style leader."
The judgment
"…Taking the examples as a whole, I do not accept the existence of thevarious
garments relied on is sufficient to have led customers or potential customers to believe that any garment bearing any image of Rihanna will necessarily be unauthorised by the artist."
various
famous stylish people, including Rihanna. The judge placed particular emphasis on two matters. The first was a shopping competition in 2010 in which Topshop offered entrants the chance to win a personal shopping appointment with Rihanna at its flagship Oxford Circus store. The judge described it in these terms:
"56. … There Topshop offered the entrants the chance to win a personal shopping appointment with Rihanna at the flagship Oxford Circus store. In doing this Topshop was providing avehicle
whereby Rihanna's styling services were being put on offer to the public. Mrs Sauvaire sought to play down the significance of this event. I am sure it is true that Topshop engages in many larger promotional activities but I do not accept this event was a minor matter. The competition was run through Topshop's website. Entry was open for four days. The entrants had to write (by email) and tell Topshop why they wanted a style consultation with Rihanna and their answers have to be seen with that in mind. Nonetheless a large number of
very
excited (presumably teenage and female) potential customers entered it. It was a success and will have had a public impact."
visit
by Rihanna to Topshop in February 2012, shortly before the t-shirt the subject of these proceedings was first put on sale. This was one of a number of occasions on which Rihanna chose Topshop garments and which Topshop publicised
very
effectively. This is how the judge put it:
"57. Mr Howe put a few other examples to Mrs Sauvaire in which publicity material emanating from Topshop referred to Rihanna. In them Topshop sought to point out to the world that Rihanna was wearing or choosing Topshop items. A good example arising a week or two before the t-shirt was on sale related to thevisit
by Rihanna to Topshop in February 2012. Whether, as the claimants submit but
various
Topshop witnesses denied, the event was leaked to the press by Topshop I will not decide because it does not matter. What is clear however is that Topshop's staff in charge of its Twitter feed sought to take advantage of the event. The tweet, from @Topshop, reads:
"Ridiculously excited! @Rihanna is in our Oxford Circus store as we tweet. Ah, wonder what she'll buy…"
58. Mrs Sauvaire estimated that Topshop's Twitter account had something of the order of 350,000 followers at that time. Given the nature of Twitter, that does not mean that 350,000 people read this tweet but it is an indication of the scale of the distribution.
59. Mrs Sauvaire emphasised that the statements made by Topshop were factually true and I accept that. However although there have not been many occasions on which such statements have been made, they are telling nevertheless. The fact they were not part of a formal endorsement agreement does not matter. Topshop was seeking to emphasise the fact that Rihanna was wearing or thinking of wearing Topshop clothing."
view
they revealed that Topshop had recognised and sought to take advantage of Rihanna's public position as a style icon. Further, a substantial number of potential purchasers would have been aware of the shopping competition from 2010 and some would have been aware of the fact that Rihanna was shopping at Topshop in February 2012. There was, of course, nothing objectionable about these activities as such but they formed an important part of the background against which the impression created by the t-shirt had to be considered.
video
shoot for the "We Found Love" single from the 2011 "Talk That Talk" album. This
video
was filmed in Northern Ireland and received a good deal of press attention in the United Kingdom in the light of the risqué clothing that Rihanna was wearing and because the owner of the land on which it was made complained about it. The judge then made the following important findings:
"67. The image is a striking one. On the garment it is oversized and shows the artist's face and shoulders. She is looking directly at theviewer
with her hair tied above her head with a headscarf. The images for the Talk Talk album show Rihanna with the same hairstyle and headscarf. Mrs Perez thought that her fans would be likely to think the image came from promotional material from the We Found Love
video
shoot. The fact Mrs Perez did not know much about the UK high street does not mean she was unable to give that evidence.
68. When I first saw the t-shirt I assumed the clothing being worn was a pair of denim dungarees although in fact the garment is a "bralet" albeit the image is placed in such a way that her midriff is notvisible.
Mr Howe submitted that the clothing
visible
in the t-shirt image was worn in the We Found Love
video
itself and would also be recognised. He invited me to watch the
video.
I watched it. I reject that point. There are many costume changes in that
video
and the garment is not prominent.
69. Nevertheless I think the relationship between this image and the images of Rihanna for the album and thevideo
shoot would be noticed by her fans. This is an important point. This image is not just recognisably Rihanna, it looks like a publicity shot for what was then a recent musical release. To someone who knew Rihanna but did not know her current work, the image is simply one of the person concerned. However to her fans who knew her work, I think this particular image might well be thought to be part of the marketing campaign for that project."
various
findings which he had made up to this point. He considered that the fact that the t-shirt was a fashion garment and the further fact that it was on sale in a high street retailer did not assist one side or the other. However, the nature of the image itself was a fairly strong indication that the t-shirt might be authorised and approved by Rihanna herself. So also, the public links between Topshop and famous stars in general and, more importantly, Rihanna in particular, would enhance the risk of consumers believing the garment had been authorised by her. He recognised that the fact that neither the swing tag nor the neck label carried the Rihanna name or the R slash logo pointed against authorisation but, in his
view,
this was not sufficient to negate the contrary impression. He summarised the position this way:
"72. … Although I accept that a good number of purchasers will buy the t-shirt without giving the question of authorisation any thought at all, in my judgment a substantial portion of those considering the product will be induced to think it is a garment authorised by the artist. The persons who do this will be the Rihanna fans. They will recognise or think they recognise the particular image of Rihanna, not simply as a picture of the artist, but as a particular picture of her associated with a particular context, the recent Talk That Talk album. For those persons the idea that it is authorised will be part of what motivates them to buy the product. I am quite satisfied that many fans of Rihanna regard her endorsement as important. She is their style icon. Many will buy a product because they think she has approved of it. Others will wish to buy it because of thevalue
of the perceived authorisation itself. In both cases they will have been deceived."
The appeal
value.
In this connection Topshop also seeks permission to appeal against the decision and consequential order of the judge at a pre-trial review hearing which took place on 5 July 2013 concerning objections to the admissibility of the evidence contained in six of the witness statements served on behalf of Rihanna, including that of Mrs Perez, a member of Rihanna's management team, who gave the critical evidence upon which the judge relied.
various
grounds of appeal in turn but must begin by setting out some basic principles. There is in English law no "image right" or "character right" which allows a celebrity to control the use of his or her name or image. Thus, in Douglas & ors
v
Hello! Ltd & ors (No 3) [2007] UKHL 21, [2008] 1 AC 1, two well-known film actors, Michael Douglas and Catherine Zeta-Jones, sought to prevent the publication and use of unauthorised photographs taken surreptitiously at their wedding. Lord Hoffmann (with whom Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood agreed) said at [124]:
"There is in my opinion no question of creating an "image right" or any other unorthodox form of intellectual property. The information in this case was capable of being protected, not because it concerned the Douglases' image any more than because it concerned their private life, but simply because it was information of commercialvalue
over which the Douglases had sufficient control to enable them to impose an obligation of confidence."
"Publication of wedding photographs in "Hello!" was not, of itself, improper exploitation of the reputation, name or likeness of the Douglases such as may be protected in some circumstances in the US: see Corpus Juris Secundum ,vol
77, pp 591–592, para 51. Nor did "Hello!'s" publication of pictures of this event constitute "character merchandising" or, still less, a case of "false endorsement" as discussed by Laddie J in Irvine
v
Talksport Ltd [2001] 1 WLR 2355. Thus it is unnecessary to consider how far English law has developed, or should develop, in these fields."
"Their claims come close to claims to a "character right" protecting a celebrity's name and image such as has consistently been rejected in English law: see Elvis Presley Trade Marks [1999] RPC 567, 580–582, 597–598, and also Brooke LJ in the interlocutory appeal in this case [2001] QB 967, paras 74 and 75. The present limits of the law of passing off as a protection of a celebrity complaining of "false endorsement" were thoroughly reviewed by Laddie J in Irvinev
Talksport Ltd [2002] 1 WLR 2355."
"Although the position is different in other jurisdictions, under English law it is not possible for a celebrity to claim a monopoly in his or her image, as if it were a trademark or brand. Nor can anyone (whether celebrity or nonentity) complain simply of being photographed.…"
v
Borden Inc & Ors [1990] RPC 341 at page 406, a claimant must establish three elements in order to succeed in such a claim. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the particular name or get up under which the goods or services are offered to the public, such that the name or get up is recognised by the public as distinctive of the claimant's goods or services. Second, he must demonstrate a misrepresentation by the defendant to the public leading or likely to lead the public to believe that the goods or services offered by him are the goods or services of the claimant. Third, he must demonstrate that he suffers or, in a quia timet action that he is likely to suffer, damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the claimant.
v
Talksport Ltd [2002] EWHC 367 (Ch), [2002] 1 WLR 2355 at [9]:
"… When someone endorses a product or service he tells the relevant public that he approves of the product or service or is happy to be associated with it. In effect he adds his name as an encouragement to members of the relevant public to buy or use the service or product. Merchandising is rather different. It involves exploiting images, themes or articles which have become famous. To take a topical example, when the recent film "Star Wars Episode I" was about to be exhibited, a large number of toys, posters, garments and the like were put on sale, each of which bore an image of or reproduced a character or object in the film. The purpose of this was to make available a large number of products which could be bought by members of the public who found the film enjoyable and wanted a reminder of it. The manufacture and distribution of this type of spin-off product is referred to as merchandising. It is not a necessary feature of merchandising that members of the public will think the products are in any sense endorsed by the film makers or actors in the film. Merchandised products will include some where there is a perception of endorsement and some where there may not be, but in all cases the products are tied into and are a reminder of the film itself. An example of merchandising is the sale of memorabilia relating to the late Diana, Princess of Wales. A porcelain plate bearing her image could hardly be thought of as being endorsed by her, but the enhanced sales which may be achieved byvirtue
of the presence of the image is a form of merchandising."
"38. In myview
these cases illustrate that the law of passing off now is of greater width than as applied by Wynn-Parry J in McCulloch
v
Lewis A May (Produce Distributors) Ltd [1947] 2 All ER 845. If someone acquires a
valuable
reputation or goodwill, the law of passing off will protect it from unlicensed use by other parties. Such use will frequently be damaging in the direct sense that it will involve selling inferior goods or services under the guise that they are from the claimant. But the action is not restricted to protecting against that sort of damage. The law will
vindicate
the claimant's exclusive right to the reputation or goodwill. It will not allow others to so use goodwill as to reduce, blur or diminish its exclusivity. It follows that it is not necessary to show that the claimant and the defendant share a common field of activity or that sales of products or services will be diminished either substantially or directly, at least in the short term. Of course there is still a need to demonstrate a misrepresentation because it is that misrepresentation which enables the defendant to make use or take advantage of the claimant's reputation.
39. Not only has the law of passing off expanded over the years, but the commercial environment in which it operates is in a constant state of flux. Even without the evidence given at the trial in this action, the court can take judicial notice of the fact that it is common for famous people to exploit their names and images by way of endorsement. They do it not only in their own field of expertise but, depending on the extent of their fame or notoriety, wider afield also. It is common knowledge that for many sportsmen, for example, income received from endorsing avariety
of products and services represents a
very
substantial part of their total income. The reason large sums are paid for endorsement is because, no matter how irrational it may seem to a lawyer, those in business have reason to believe that the lustre of a famous personality, if attached to their goods or services, will enhance the attractiveness of those goods or services to their target market. In this respect, the endorsee is taking the benefit of the attractive force which is the reputation or goodwill of the famous person."
"46. It follows from theviews
expressed above that there is nothing which prevents an action for passing off succeeding in a false endorsement case. However, to succeed, the burden on the claimant includes a need to prove at least two, interrelated facts. First, that at the time of the acts complained of he had a significant reputation or goodwill. Second, that the actions of the defendant gave rise to a false message which would be understood by a not insignificant section of his market that his goods have been endorsed, recommended or approved of by the claimant. I shall turn to those two issues."
vivid
example of this is provided by the case of Elvis Presley Trade Marks [1999] RPC 567. This concerned an application for the trade mark Elvis Presley in respect of toiletries by the business which was properly regarded as the successor to the merchandising business previously carried out by or on behalf of the rock and roll star. In the High Court, Laddie J decided that the application should not proceed to registration on the ground it was simply not distinctive. An appeal to this court was dismissed. As Robert Walker LJ explained (at page 585), the judge had rightly concluded that the mark had
very
little inherent distinctiveness. Members of the public purchased Elvis Presley merchandise not because it came from a particular source, but because it carried the name or image of Elvis Presley. No assumption could be made that the use of a well known name, whether of an individual celebrity, living or dead, or a fictional character, must have been franchised and licensed. The same point was made by Morritt LJ at page 594:
"Counsel for EPEI forcibly contended that such a conclusion would leave the door wide open to unscrupulous traders seeking to cash in on the reputations of others. That is true if, but only if, the mark has become so much part of the language as to be descriptive of goods rather than distinctive of their source. But in that event I can see no objection to any trader being entitled to use the description. In the field of memorabilia, which I consider includes consumer items bearing the name or likeness of a famous figure, it must be for that person to ensure by whatever means may be open to him or her that the public associate his or her name with the source of the goods. In the absence of evidence of such association in myview
the court should be
very
slow to infer it."
"In addressing the critical issue of distinctiveness there should be no a priori assumption that only a celebrity or his successors may ever market (or licence the marketing of) his own character. Monopolies should not be so readily created."
v
Harrodian School Ltd [1996] RPC 697 at 712-713:
"The relevant connection
…. In my judgment the relevant connection must be one by which the plaintiffs would be taken by the public to have made themselves responsible for the quality of the defendant's goods or services. In British Legionv.
British Legion Club (Street) Ltd. (1931) 48 R.P.C. 555 Farwell J. considered that the public would take the defendant club to be "connected in some way" with the plaintiff. But he explained this by saying that some persons would think that it was "either a branch of the plaintiff or a club in some way amalgamated with or under the supervision of the plaintiff and for which the plaintiff had in some way made itself responsible" (my emphasis).
This, in my opinion is the gist of the matter. In the Bollinger case [1978] R.P.C. 79 at page 99 Buckley L.J. described the relevant representation as one calculated to mislead members of the public into a mistaken belief that
"the goods or services of the defendant or the defendant's business are or is either (a) the goods or services or business of the plaintiff or (b) connected with the plaintiff's business in some way which is likely to damage the plaintiff's goodwill in that business" (my emphasis).
In the same case Goff L.J. said at page 117
"Not every kind of connection claimed will amount to a passing off … On the other hand in myview
there can be a passing off without representing that they are actually the well-known goods which the plaintiff produces or a new line which he is supposed to have started. It is sufficient in my
view
if what is done represents the defendant's goods to be connected with the plaintiff in such a way as would lead people to accept them on the faith of the plaintiff's reputation. Thus for example it would be sufficient if they were taken to be made under licence, or under some trading arrangement which would give the plaintiff some control over them, and I think Harman J had such ideas in his mind as appears from the passage at page 93 of the Treasure Cot case where he spoke of "something for which the plaintiffs were responsible" (my emphasis.)
It is not in my opinion sufficient to demonstrate that there must be a connection of some kind between the defendant and the plaintiff, if it is not a connection which would lead the public to suppose that the plaintiff has made himself responsible for the quality of the defendant's goods or services. A belief that the plaintiff has sponsored or given financial support to the defendant will not ordinarily give the public that impression. Many sporting and artistic events are sponsored by commercial organisations which require their name to be associated with the event, but members of the public are well aware that the sponsors have no control over and are not responsible for the organisation of the event. Local teams are often sponsored in similar fashion by local firms, but their supporters are well aware that the sponsors have no control over and are not responsible for the selection or performance of the players."
vice
in the impugned activities lay not in the use of Rihanna's image but in using it in such a way as to cause a misrepresentation. As Mr Howe submits and again I accept, Topshop is in effect contending not for the absence of an image right, but rather for a positive right to market goods bearing an image even if the use of that image in particular circumstances to particular customers gives rise to a misrepresentation. To accede to that submission would be to sanction a trade which results in the deception of the public.
"I want to get this thing because Rihanna is so inspirational. She is soo strong, confident, independant, beautiful, and overall amazing. She was strongest when she was weakest, she is funny when nothing is, and her music and amazing. I would be honoured to meet Rihanna, and have the day with her. I love her xxxx
Posted by: Kamila | Oct 01, 2010 at 09:13 PM
I would love to win a style consultation with Rihanna as she is so unique, stylish and know's just what to wear to look stunning, i really could do with her help as i seemed to have come to a standstill in what to wear and what not to wear, I'm hoping Rihanna can spice me up a little and bring my sparkle back.
Posted by: michelle waudby | Oct 01, 2010 at 09:13 PM
Rihanna's style is effortless cool, with a edgey, rockstar twist. I love the fact that she is not afraid to try something new or outragous and that her style reflects her attitude. I try to do this with my own style where I mix hard styles with softer fabrics and Statement pieces to get across my relaxed, grunge/rock personality. She is a true style icon, who many people can learn from.
Posted by: Amber Davis | Oct 01, 2010 at 09:17 PM"
value.
In my judgment there is nothing in the first of these points. The statement of claim made clear that Rihanna contended that the image was unauthorised and had been taken whilst she was filming for one of her singles in Northern Ireland. This theme was developed in the statements of those witnesses who gave evidence on her behalf and then, in her opening written argument at trial, there appeared a full exposition of her contentions. She explained that the image shows her dressed for her
video
for the single We Found Love from the Talk That Talk album; that the
video
shoot received lengthy press coverage, partly as a result of the complaints by the farmer upon whose land it was made; and that the image is recognisably her in that music
video
context.
"47. … Ms Perez is the main witness for the claimants. Most of it is not objected to. Some of Ms Perez's evidence which is objected to is duplicative of what I have dealt with already. It relates to the licensing business in the music and fashion area. The high point of Ms Perez's evidence on the question of whether it is expert evidence is paras. 81 to 83. Here effectively Ms Perez articulates the claimants' case why the T-shirt in this case is said to create a misrepresentation that it is authorised and why the claimant is concerned about it. I think this is natural evidence for the claimant to give. It is not expert evidence. It is difficult to see how this case could be articulated otherwise."
"83. In my experience, the fact that the image that was used on the unauthorised t-shirt was taken on the occasion of avideo
shoot, and a well known one too, rather than when [Rihanna] was not working or at an event, means that fans are particularly likely to think that the image came from promotional material for that album, single or
video.
In this case the official booklet for the Talk That Talk album contains professional images of Rihanna. Included in those images are shots from the We Found Love
video
shoot. They show Rihanna with the same hairstyle and headscarf that she was wearing in the shot used for the Topshop t-shirt ... [Topshop's] actions were therefore likely to lead fans to think the t-shirt was authorised, particularly as it was sold under the mark RIHANNA TANK ..."
"94. …Arcadia's
unauthorised t-shirts bear an image of Ms
Fenty
in the distinctive clothing, hair and makeup of the authorised music
video
I have described above, thereby implying that this t-shirt is authorised and indeed part of that official authorised and approved promotion. Thus the sale of these shirts infringes her rights and is likely to deceive the fan and customer base. The typical potential shopper is likely to come from the younger age groups who listen to her music and perhaps follow her through social media. They may or may not be able to go to her concerts but they rely on the reputation of the place where they shop."
"Mrs Perez thought that her fans would be likely to think the image came from promotional material from the We Found Lovevideo
shoot. The fact that Mrs Perez did not know much about the UK high street does not mean she was unable to give that evidence."
video.
It seems to me that, having come this far, the judge was also entitled to go on and make the finding that he did at paragraph [69], namely that the relationship between this image and the images for the album and
video
would be noticed by her fans. Indeed the nature of the image may be thought to have made it
very
likely indeed that it would be taken to be an authorised publicity shot for what was then her recent musical release. I am therefore entirely satisfied that, however inappropriate the inclusion in paragraph [67] of the reference to the opinion of Mrs Perez may have been, it had no effect upon the conclusion to which the judge came. In these circumstances it is not necessary and I do not believe it would be appropriate to embark upon a consideration of whether and to what extent evidence of trade practice, trade usage, consumer behaviour and consumer perception constitute expert evidence to which the provisions of s.2(3) of the Civil Evidence Act 1972 and CPR Part 35.4 apply.
Lord Justice Underhill:
very
distinctive hairstyle adopted in the publicity for Talk That Talk. I do not believe that either by itself would suffice; in particular, Rihanna's association with Topshop does not seem to me to have been such as to weigh
very
heavily in the balance. But the judge considered the question
very
carefully, taking due account of the factors going the other way, and in my
view he was entitled to find that the two features in combination were capable of giving rise to the necessary representation.
Lord Justice Richards: