South Africa: Rihanna Hasn’t Lost Her Appeal

Last Updated: 6 February 2015
Article by Gaelyn Scott

Most Read Contributor in South Africa, September 2018

Rihanna's case against Topshop, Robyn Rihanna Fenty v Arcadia Group Brands Ltd, continues to make the news. This was, of course, the case where Topshop used a photograph of Rihanna on a t-shirt without getting the star's permission, and Rihanna sued for passing-off. The photograph, which had been taken by an independent photographer, showed Rihanna wearing the same clothing she'd worn on the video of a single from an album called 'Talk That Talk', a video that had received considerable publicity.

Passing-off is all about goodwill, misrepresentation and damage. The UK court accepted that consumers seeing the t-shirt would mistakenly believe that it had been endorsed by Rihanna, and that there was therefore passing-off. Topshop took this decision on appeal. The Court of Appeal recently dismissed the appeal, holding that there was clearly a misrepresentation that Rihanna had endorsed the product.

But it seems to have been a close call. The judge who handed down the main judgment said that Rihanna had managed to overcome 'two critical hurdles'. These were establishing that the use of the image involved a misrepresentation about the source of the goods, and establishing that the misrepresentation was material in that it affected the customer's buying decision. The other two judges described the case as being 'close to the borderline'. They made it clear that they had been very much influenced by the somewhat unusual facts of this case.

So just what were these facts? Well, as their lordships discovered, Rihanna has been heavily involved in fashion for some time, and people know this – Rihanna is something of a fashion icon, having once had an arrangement with the fashion brand River Island in terms of which she designed clothing for them, and having previously endorsed clothing that was sold at Topman, a store that's related to Topshop. And the judges were prepared to accept that Rihanna's fans would see a clear link between the t-shirt and the album.

The Rihanna decision is regarded as fairly important in the UK. That's because the issue of celebrity endorsement has always been seen as being quite tricky. As the Court of Appeal emphasised, there's no such thing as an image right in the UK (or publicity right as it's called in the USA). And even though there was a famous case of a celebrity succeeding in a passing-off case - Formula One driver, Eddie Irvine, successfully sued a radio station that used his photograph on an adverting billboard without permission, with the judge accepting that people would wrongly assume that he had endorsed the station - the UK authorities have in the past taken the view that when it comes to goods like t-shirts, posters and mugs, people seeing photos of celebrities think little of it, other than perhaps 'this is a t-shirt/poster/mug of Rihanna'. In other words, they think that the celebrity is simply the subject matter of the product.

So what is a celebrity to do? In South Africa the law on passing-off is very similar to that in the UK, so a passing-off case is clearly an option. Based on the Rihanna decision, the more product endorsement the celebrity does, the better their chances of being able to stop unauthorised image use.  It would probably also be a good idea for the celebrity to let it be known that they endorse products.

The South African celebrity may have other options too. South Africa does recognise something akin to an image right, although we call it the right to identity. This area of the law is fairly undeveloped, although there have been cases where it has been successfully raised, including one involving  former Miss South Africa, Basetsana Kumalo, who successfully sued Cycle Lab for using her photograph in an advertisement without permission. The Code of the Advertising Standards Authority may also offer an avenue, because it says that an advertiser cannot portray a celebrity without their consent, except in cases where it doesn't interfere with their right of privacy or amount to unjustified commercial exploitation - a former CEO of SAA tried this route when Nando's brought out its 'Chicken or beef Mr Nqdula, we suggest chicken peri-peri' advertising campaign,  but the ASA ruled that the use of his name had been justified because he had been much in the news. Copyright will only be an option in cases where the celebrity owns the copyright in the particular photograph that's been used, something that's unlikely to happen.

Celebrities should, however, give serious consideration to getting trade mark registrations. A celebrity can register not only their name, but also photos and line drawings of themselves in respect of defined goods.  Obvious categories to go for would be clothing, cosmetics and printed materials. It is a requirement for trade mark registration that the applicant must genuinely intend to use the trade mark on the goods, but this intention will, I think, be present if the celebrity realistically anticipates entering into licence or endorsement relationships. A registration isn't limited to the exact trade mark that's registered, which means that a registration for a photograph would give protection against the use of photographs that might be regarded as confusingly similar. A trade mark infringement case is generally far easier to prove than a passing-off case and so a trade mark registration is suggested.

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.

Similar Articles
Relevancy Powered by MondaqAI
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
Similar Articles
Relevancy Powered by MondaqAI
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