Intellectual Property Right: The Case Rihanna v Topshop - Essay Example

Intellectual Property Right (Instruct s Define the intellectual property and examine the lawsthat protects intellectual property 2. Examine the issues in the case Rihanna v Topshop 3. Examine the base for the claim laid by the plaintiff (is the issue about protection of image of property in her image?) 4. Examine the claims presented by the plaintiff and the defendant in regard to law of “passing off”. This will include the previous deals between the two parties. 5. Assess the possible damages caused by the defendant to the plaintiff and whether it is a real damage perceived damage. 6. Examine the claim of lack of authorization of the defendant by the plaintiff to use her image. 7. Examine the factors leading judge to make his decision on the case. How did the judge substantiate the claim of passing off? Was the defendant’s act a deception to their clients, did it case damage to plaintiff, and did it affect plaintiff’s goodwill? 8. Examine the weaknesses in the court’s ruling that may compel the defendant to appeal 9. Assess the opportunities of the appellate to succeed in the appeal case 10. Examine the chances of the appellate for succeeding in the appeal case. 11. Make a conclusion of the case Introduction Intellectual property right may refer to the creation of something of values such as patents, designs, trademarks and copyright, that is distinctive from what have been created by other people.1 Intellectual property right is owned by an individual or business responsible for its creation. The law recognizes the intellectual property right and offer protection in order to nurture creativity by ensuring the owner is in full control of who uses that property and enables the owner to charge other users in order to raise income.2 In the case of Rihanna against Topshop, the plaintiff raised the issue of passing off since there was legal protection for the images. The study explores how justice Birss approached the case and what led him into a conclusion that the plaintiff had a legal claim against Topshop, and examine the appeal process as well as merits for the appeal. The defendant was given a chance to petition for an appeal either against the charges or against prohibition of sale of the merchandise. Rihanna v. Topshop In Robyn Rihanna Fenty and others v Arcadia Group Brands Ltd (t/a Topshop) and another [2013] EWHC 2310 (Ch), the case was about Robyn Rihanna Fenty (“Rihanna”) and Arcardia Group Brands Ltd (“Topshop”) the world renown pop star and fashion dealer respectively. The defendant started producing and selling t–shirts with plaintiff’s image on it. The defendant had obtained permission to use the image on the t-shirts from an independent photographer, but they did not obtain permission from the plaintiff. The independent photographer had taken those photos with the permission of the plaintiff in one of the Plaintiff’s video shooting for single from her “Talk That Talk album.” Rihanna sued the Topshop against passing off for using her image to market their products without her permission. The claim in her legal suit against the defendant was that the conduct of the defendant was an infringement of plaintiff’s rights.3 In the passing of judgement, the plaintiff had the onus to prove that she had public goodwill, the defendant’s conduct portrayed misrepresentation and that the plaintiff suffered some loss as a result of defendant’s conducts according to the ruling in the case Reckitt & Colman Ltd v Borden Inc [1990] 1 All E.R. 873. The laws applied in England do not provide protection for the public image among the celebrities.4 However, they can give protection of privacy to distribute specific photographs or images controlled held privately.5 The public figures claim that their images are financial assets that require adequate remedy in case another person or business is found guilty for abusing those images.6 The defendant claimed that their customers had nothing to associate the merchandise with the plaintiff. In addition, the market trend involved use of various images on the merchandise, and that, Topshop had used various images on their products thus there was no way the defendant’s clients would expect the Topshop to have obtained permission from the plaintiff.7 Furthermore, the Topshop’s merchandise was of superior quality unlike those of the plaintiff.8 The English High Court resolved that the sale of a product with in image of a celebrity and nothing else in addition does not constitute the claim of passing off. They argued that if customers bought the products just for the fun of having the images of a celebrity does not exhibit any act of passing off. The act of passing off occurs in the case of misrepresentation whereby, the plaintiff and the defendant were engaged in a relationship that may have convinced the buyers that the plaintiff had a hand in the production of quality defendant’s merchandise.9 The high court pointed out that Rihanna had an influence in the fashion industry and has been used to promote various fashion products across the world.10 She has been used by big companies such as Armani and River Island among others. In Irvine v Talksport[2002] FSR 60 the plaintiff had used her image to promote her own t-shirts thus she has a good will in the fashion industry that warrants her to raise a claim against passing off. The plaintiff could only raise a claim on passing off if the case involves misrepresentation of the facts. Therefore, before making the ruling the high court had to establish the issue of misrepresentation in the conducts of the plaintiff and the defendant.11 The use of the plaintiff’s image to promote the defendants merchandise should have been accompanied by an authorization label or tag.12 According to the findings of the high court presiding over the case, the defendants merchandise did not exhibit any authorization code or label from the plaintiff. Although the use of the authorization on the label or tag on the merchandise is a direct indication that the plaintiff intended the defendant to use her image for promotion activities, the court has to explore other issues that could establish the probability that the defendant did not pass off the authority of the plaintiff.13 Misrepresentation in the case was also contributed by the defendants endeavour to demonstrate a link between the iconic pop star and the Topshop merchandise to the public. The defendant’s effort to establish a link may have established a strong conviction among the clients that the defendant had obtained permission to use the plaintiff’s image on their merchandise.14 Despite lack of authorization tag on the merchandise, the defendant’s conducts constituted to misrepresentation. According to the court’s decision in the Douglas v Hello (2007) UKHL 21, a celebrity has no legal protection over the circulation of their image, unless for particular photos in which they have a copyright. In the examination of Rihanna v. Topshop case, the English High Court discovered that the defendant had used one of the plaintiff’s single photos taken in a video shoot. That led the judges into making a conclusion that the public would get a conviction the plaintiff had been involved in the merchandise and was taken the photo purposely for use in the defendant’s merchandise. The plaintiff had a claim over that particular image that can be presumed she had a copyright over it. The use of Rihanna’s image in the Topshop merchandise would easily lure her fans to purchase those t-shirts for the love of her image and not the actual products.15 Having the conviction that the plaintiff had authorized the defendant to use her image in their merchandise; the public would be tempted to make a purchase of the products. The clients would be willing to purchase the Topshop merchandise at a higher value because of the additional authorization cost. The court came to the conclusion that deceiving the public to purchase Topshop merchandise after using plaintiff’s image without permission would a devastating effect of the plaintiff’s image and her career. The defendant’s conduct of using plaintiff’s image without her authority would make her lose her popularity in the fashion industry.16 In the long run, that would result to decline in sales for the plaintiff’s merchandise and a subsequent loss of revenue from her business. Therefore, Rihanna had a valid claim of passing off by the defendant for failing to obtain authorization for the use of her image in their t-shirts. The Justice Birss ruled that Rihanna had a good will sufficient for passing off because she had fans from across the world that knew her of being a pop star singer and was involved in merchandising and approving various merchandise.17 “Most of her fans were young ladies aged between the ages of thirteen to thirty years.” The plaintiff was aware that her fans would buy any product she endorsed or ware in her public functions similar to the one from which the photo used by the defendant was taken. The defendants merchandise was fashionable and of very high quality thus it was likely that the plaintiff’s fans were going to mistake Topshop merchandise as belonging to the plaintiff, and purchase them in her respect.18 The defendant had established public links with the plaintiff and other top celebrities across the globe. For example, in the year 2010 Topshop conducted a promotion in which they offered the participants the shopping competition “a chance to win a personal shopping appointment with Rihanna at their flagship store in Oxford Circus.” From the public connections that defendant had established with the plaintiff, it was apparent that Topshop retailers were aware of the existing good will of the plaintiff.19 The judge took notice that the defendant had not given any comment to prove that any client had bought the merchandise deceptively thinking they belonged to Rihanna’s merchandise. Therefore, the lack of such a comment was of significant benefit to the defendant because the court and the plaintiff did not prove that the defendant had benefited from the illegal use of plaintiff’s image.20 However, the plaintiff raised the allegation that Topshop had circulated a message via social media, twitter to be in particular in which they announced that the plaintiff was visiting their store.21 The tweet was released two weeks before commence of sales of the merchandise probably hoping that they would boost their sales. The ruling judge pointed out that the social media was of critical for both defendant and the plaintiff due to the nature of their clients who young people. That category of client relied heavy on social media for communication thus the defendant could not deny their announcement about the plaintiff’s visit to defendant’s store must have had some influence on the buying habit of the t-shirts. Therefore, the conduct of the defendant to influence the consumer’s habit using the plaintiff’s visit to defendant’s store influence the judge a great deal at the time of issuing a verdict.22 Topshop merchandise was of high quality and could easily lure some buyers into buying them irrespective of whether the defendant had associated them with the plaintiff or any other style icon. However, a significant proportion of the buyers would be influenced by the image of the plaintiff and opt to buy thinking the merchandise had been endorsed by the plaintiff. Therefore, the judge took into consideration the fact that the defendant did not obtain permission to use the plaintiff’s image in promoting the merchandise yet those images had influence on the buying behaviour of the defendant’s client’s. In his conclusion, Judge J. Birss decided that the use of plaintiff’s image by the defendant had influence on the defendant’s sales. Consequently, the customers’ deception that defendant’s merchandise had been endorsed by the plaintiff degraded the plaintiff’s goodwill.23 The overall impact of the deception would be plaintiff’s loss of control of plaintiff’s “reputation in the fashion sphere” and a decline in revenue of her merchandise. The judge requested the defendant to pay the legal fee of two hundred thousand pounds and prohibited the defendant from further distribution of merchandise bearing the plaintiff’s image.24 SKELETON CASE APPEAL IN THE XXXXX COURT Claim No XYZ453 BETWEEN TopShop Appellate And Rihanna Appellee SKELETON ARGUMENT OF THE APPELLATE Introduction 1. The appellate has made an application under the civil procedure xxxx, for a provisional sum of £200,000 or any other amount the court may deem appropriate. The Defendant contests the submission. Evidence 2. In defending this submission I will refer to: i) Witness statement of Miss Drummond is the PR manager for Topshop. ii) Exhibit: Incidences that occurred on February 2012. iii) Defence, dated 7th April 2014 iv) Witness statement of Mrs Sauvaire is Head of Marketing for Topshop. Background 3. The claim is for the damages of appellate caused appelle of passing off for using her image on t-shirt the appellate produced and started marketing on March 2012 without her permission to use and purportedly resulted to loss of appellee’s goodwill. The appellee is a fashion star and pop star, had permitted a private photographer to take private photo for use in her music album. The appellate obtained the appellee’s image from the private photographer without the appellee’s permission and that made her raise a claim of passing off. Circumstances in which the interim payment can be paid 4. The court may make an interim payment order if satisfied that one of the requirements is met.   5. The interim payment ordered by the court cannot exceed a reasonable proportion of the possible amount to be charged in the final ruling. The Appellant’s submissions opposing An Interim Payment 6. The Topshop tenders the application for interim should be rejected on the following conditions: i). The appellee is not responsible for passing off hence appellate will not be charged the amount proposed in the trial court. ii). If the appellee contributed to the claim of passing off, the appellee will recover some amount as damages from the appellee. iii) There is no need for pre-trial payment of the interim amount because it is not for urgent use Liability 7. The appellate has the responsibility confidently show they will obtain fair ruling. 8. The appellee will have to ascertain that appellate was responsible for passing off and how that contributed to appellee loss of goodwill and damages she suffered. Also, she will have to establish misrepresentation by the appellate. Recovery of some interim amount The appellee will have to substantiate the amount of damages suffered and how the appellate benefited from passing off. The appellate will recover some amount if the total damages were partly due to appellee’s “contributory negligence.” In case the appellate is found not to have caused any damage to the appellee, the appellate will be able to recover a substantial proportion of the amount of interim paid. Conclusion The appellate should make an application for the interim payment of against the trial court judgment. Merit of the appeal The appellate is reputable fashion retailer. The loss of the case to the claimant has a devastating effect on their business.25 The court’ order to the appellate to stop distributing t-shirts bearing the appellee’s image has both financial consequences and loss of clients. Since there was legal clause that prohibited such conduct in UK, the appellate has a reason to petition the appellate court to reverse the ruling. Furthermore, both parties have a global reputation and they had engaged in business deals previously, therefore, the issue of loss of reputation should not occur. In addition, the appellate is a producer of quality products thus clients may not require any endorsement from a fashion star in order to buy them.26 Finally, there is no evidence to support the allegation that the use of appellee’s image contributed to increased sales of the Topshop products or a decline in the sale of appellee’s merchandise. Drawing conclusion from the case of Harrods Ltd v Harrodian School Ltd. ([1996] RPC 697, the court of appeal will have to examine whether the appellate had intention of infringing the privacy right of the appellee or the action was taken in good faith. Conclusion The case involving Rihanna v Topshop was about the privacy of particular image since there is no legal protection against unauthorised use of image in UK. Rihanna sued Topshop on the basis of passing off in which the judge established the defendant had deceived the clients of plaintiff’s endorsement of defendant’s merchandise. In addition, the judge concluded that plaintiff’s reputation may have been damaged her goodwill compromised. The defendant was given a chance to appeal the ruling in the court of appeal. The success of such an appeal will be determined by the appellate ability to prove that there was n deception in their conduct and their action did not cause injury to appellee’s image Bibliography Blakeney, Michael. Intellectual Property Enforcement: A Commentary on the Anti-counterfeiting Trade Agreement (ACTA). (UK: Edward Elgar Publishing, 2012)394 Caddick Nicholas and Longstaff Ben . A Users Guide to Trade Marks and Passing Off. (Bloomsbury Publishing, 2012) 474 Carty Hazel. An Analysis of the Economic Torts. (Oxford University Press, 2010) 333 Colston Catherine and Galloway Jonathan. Modern Intellectual Property Law. 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