Robyn Rihanna Fenty (yes, that Rihanna) was unhappy when Topshop, a UK fashion retailer, started selling T-shirts with her image on them. Topshop had obtained a licence from the photographer who took the picture, but not from the singer herself (although it did have other marketing deals with her). Since there is in England no general right of a person to control the use of his or her image, and only a 'developing' law of privacy, Rihanna's claim against Topshop was framed as passing off. In order to establish her case, the singer needed to prove that (a) she has goodwill and reputation amongst members of the relevant public, (b) Topshop misrepresented to the public that it had her authorisation to use the image and (c) the misrepresentation damaged her goodwill.
Rihanna prevailed in the Chancery court (Fenty v Arcadia Group Brands Ltd, [2013] EWHC 2310), but not without some obstacles. Among these was the principal witness testifying about her goodwill and reputation, who proved 'combative'. Justice Birss, with classic English understatement (and perhaps a hint of condescension), was prepared to attribute this to 'a difference in culture between an English barrister and a New York based individual in the music business', ultimately concluding that Rihanna does, indeed, enjoy a significant degree of goodwill and reputation in the marketplace based on what the judge called her 'cool, edgy image'. He distinguished merchandising from endorsement: the former does not suggest a connection with or authorisation from anyone, the latter obviously does. While 'the mere sale by a trader of a T-shirt bearing an image of a famous person is not, without more, an act of passing off', there was more here: the singer had clearly established herself as a 'style icon' who carefully managed her fashion-related endorsements --including her previous licensing arrangements with Topshop and sister companies, which frequently rely on celebrity endorsements for their wares. It was likely that a member of the public might think the T-shirts in question were Rihanna-approved (even though they did not bear her name or distinctive R logo). This was 'obviously' damaging to her goodwill, notably in the form of sales lost by her own merchandising business.
http://www.bailii.org/ew/cases/EWHC/Ch/2013/2310.html
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