The use of one’s image or personality for the marketing of goods and services is a valuable commodity for both the individuals who boast celebrity status and the organisations who seek to hire their image for endorsement and marketing purposes. The number of celebrities endorsing brands has been steadily increasing over the past years and marketing professionals overtly acknowledge the power that celebrity endorsements can have in influencing consumer purchasing decisions.
Considering that the root of a “personality right” is the commercial exploitation of an image or personality it may surprise you to discover that no particular intellectual property right covers this topic in so far as the UK is concerned but as you would expect, it is a topic that comes up again and again.
A recent case was one where Rihanna won her claim in the High Court for passing off against Topshop. Her complaint centred on an image of herself appearing on a T-shirt. The particular image was one taken by an independent photographer during a video shoot for one of her singles and whilst Topshop had obtained permission to use this image from the owner of the copyright in the photograph they hadn't sought Rihanna's permission.
But as Rihanna was not the owner of the image or the owner of the copyright in the image was that really necessary? The answer to that would seem to be yes if the celebrity in question is perceived as being a style icon that is sought after in relation to fashion endorsements.
Mr Justice Birss made reference to the case of false endorsement as per Irvine v Talksport confirming that there was no difference in law between an endorsement case and a merchandising case. The facts would differ but the issue would always depend on the nature of the relevant market and the perceptions of the relevant customers. Merely recognising that the image was that of a celebrity was not enough to succeed; there must be a misrepresentation about trade origin.
"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. However, the sale of this image of this person on this garment by this shop in these circumstances is a different matter. I find that Topshop's sale of this Rihanna t-shirt without her approval was an act of passing off," he ruled.
For any aspect of Intellectual Property advice and overall strategy, please get in touch with the ip21 team.
Melanie Harvey, Senior Trade Mark Attorney for ip21 Ltd