New Zealand: Passing off as Rihanna

In a recent case from the Chancery Court, Rihanna, a prominent pop star, successfully sued Topshop, a high street fashion retailer, for passing off.

Topshop had been selling T-shirts emblazoned with a photograph of Rihanna. The photograph had been taken by a freelance photographer, so Rihanna had no intellectual property in the image itself. Rather, she alleged that Topshop's use of the image would lead consumers to believe that the T-shirt was official Rihanna merchandise, and that they would buy the product as a result of that mistaken belief.

Justice Birss was careful to note from the outset that the basis for the action was not "so called image rights" to control the reproduction of one's image. Such rights, while recognised in the United States and Canada, do not exist in the United Kingdom. Nor did the case fall under the umbrella of the tort of invasion of privacy.

In order to establish the tort of passing off, Rihanna had to satisfy the three-pronged test of goodwill, misrepresentation, and damage. That is, she had to show that she had goodwill and reputation among members of the public, that Topshop's conduct amounted to a misrepresentation, and that the misrepresentation caused damage to her good will. The essence of Rihanna's complaint was that consumers would be deceived into thinking that the t-shirt was authorised by Rihanna and would buy the product as a result of that mistaken belief.

In terms of Rihanna's goodwill and reputation, the Judge noted that Rihanna was a famous popstar with a "cool, edgy image". She had an extensive merchandising and endorsement operation through her related companies, and had entered into various endorsement and agreements with third parties.

The Judge found that on the evidence, Rihanna was a "style icon" and that if she was seen to wear or approve of an item of clothing, that would be an endorsement of the item in the mind of consumers, particularly young females aged between 13-30. The first element of the claim was proved, as ample goodwill existed not only in relation to Rihanna's reputation as a musician, but also as a fashion icon.

Turning to misrepresentation, which was the pivotal issue of the case, the Judge emphasised that "No one is entitled to be protected from confusion as such". If a person is buying a product simply because they want to buy an image of a pop star, then there is no misrepresentation. For misrepresentation to exist, it must be about the origin of the product. In other words, it was necessary for Rihanna to show that the product would lead consumers to believe that was responsible for it.

Topshop argued that there was no misrepresentation because there was nothing on the garment representing it as an item of official Rihanna merchandise. For instance, the distinctive Rihanna logo was absent.

Further, the T-shirt was a high quality fashion garment rather than standard pop star merchandise, and that consumers would be able to distinguish between the two. It was argued that fashion garments sold at high street shops are generally more "design-lead" and of a higher quality than the kind of merchandise one could buy at a musician's concert.

Further, the T-shirt was produced at a time when there was a fashion trend for image T-shirts, and the public had no expectation that such garments were authorised by the person shown in the image. There was no evidence adduced that consumers had in fact been confused by the product.

Justice Birss rejected these arguments. He accepted that the use of a photo on a T-shirt would not necessarily lead consumers to believe that the garment was authorised by the subject of the photo, but found that in this case, misrepresentation was made out.

First, he considered that the context of the relationship between Rihanna and Topshop was significant. Topshop had promotional relationships with various famous personalities. In particular, they had previously engaged in promotional events with Rihanna, and when she visited their store shortly before the T-shirt was on sale, "tweeted" about Rihanna's visit on Topshop's Twitter fee.

Secondly, the image of Rihanna on the T-shirt could be confused with a publicity shot for her single "We Found Love", as the image depicted her wearing the same hairstyle and headscarf as in music video for that song. The commercial nature of the unauthorised photograph increased the prospect of confusion.

On balance, the Judge considered that the nature of the image, and the public links between Topshop and Rihanna, would increase the likelihood that consumers would think the garment had been authorised by Rihanna. The Judge was satisfied that the perception that Rihanna had authorised the product would motivate some consumers to buy the product and as such, consumers would be deceived.

Finally, on damage, the Judge held that once misrepresentation was proven, it followed that there would be damage to Rihanna's goodwill, in terms of sales lost from Rihanna's own merchandising and her loss of control over her reputation in the fashion world.

In short, Topshop found itself in a hopeless place.

This decision very much turned on its specific facts, but it is significant as being the first case in England where a famous personality has won a passing off case based on their image on clothing.

It also demonstrates the fine line between passing off cases based on endorsements, and the developing law of "image rights", which is not recognised in the United Kingdom or New Zealand. Although the Judge said the case was not about "image rights", the effect of the decision was to confer on Rihanna a right to control the use of commercial-style images of herself, particularly by retailers with whom she had a previous relationship.

It may be that photographers, fashion designers and retailers will need to show more caution about the type of celebrity images they place on products. The more similar the image is to authorised merchandise, the more likely it is that consumers will be confused. This in itself is fairly orthodox. But the case also recognises the increasing overlap between pop stars and high end fashion. Celebrity merchandise is no longer restricted to cheap, low-quality T-shirts, which means that a retailer cannot necessary distinguish their product based on quality.

Retailers will need to be particularly careful if they have had a previous association with the celebrity (or celebrities in general), whether through promotions or stocking authorised merchandise.

It remains be seen whether this case emboldens other celebrities to bring similar claims. The moral of the case? Don't take on Rihanna, because she definitely won't Love the Way you Lie.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions