Passing Off

What do you law on passing off in Intelectual property oscar refrence?

The recent scenario has witnessed a rise in the number of instances associated with fraud by way of misrepresentation of products, which has made it necessary to establish necessary laws regarding the protection of any property and/or products. The advent of globalisation has influenced several traders to sell their products by taking assistance of various celebrities, which increases the level of profitability. These factors mainly work as a celebrity promotional strategy towards providing assistance for the selling process and increasing the number of sales. However, to in order to perform such kind of promotional strategies, the company should take adequate permissions from the concerned authority in a legal manner. For instance, the use of celebrity pictures for selling any merchandise is recognised as one type of celebrity promotional endorsement. Therefore, this above-mentioned promotional activity can create any complexities associated with the sales of the products along with the legal issues.

The advent of intellectual property law has enabled ensuring protection of the intangible properties that are considered as possessing innovativeness and comprise of patents and copyrights. Intellectual property rights are directed towards safeguarding the people holding such properties in their name from misrepresentation by others in terms of fraud conduct. The intellectual property is defined as products and/or properties, which are mainly recognised as creations of human mind. Properties such as literacy as well as artistic works, symbols, name and images of any popular person are categorised under intellectual property. Furthermore, it can be noted that intellectual property are segmented in to two categorises i.e., industrial property as well as copyrights.

The prime objective of the study is to focus over the importance of intellectual property rights that significantly help to protect the property from fraud or other forms of errors. To evaluate the actual importance of the law, a recent case study associated with law on passing off.

In intellectual property, this focuses towards the legal issues involved with the sales of garments that have images of a famous person. In this regard, the case sample of Robyn Rihanna Fenty vs. Arcadia Group Brands Limited will be taken into consideration. Besides, the study will also focus over the legal issues, which are associative with the particular fact.

Passing off is regarded to be one of the most important laws, which is mainly helpful in protecting unregistered trademarks related rights. Specially mentioning, in the common law countries passing of is regarded to be a common law tort, which also used for protecting the goodwill of the dealer as well as manufacturer by getting affected from the misrepresentation. The company Topshop has been using an image of Rihanna in their tank top and selling it in the market. In addition, Rihanna is engaged in any endorsement this particular brand, which is located in London. Therefore, this particular fact has been creating the issues of misrepresentation by affecting her goodwill.  As per the claim of Rihanna she is unaware about the fact that her image has been using for printing on a tank top, which is indirectly damaging her reputation. The law of passing off is based on a principle, which elaborates that a person should not sale his or her products under the deception of their products to another person. 

Rihanna Case Description

The case was held between Rihanna and Arcadia Group Brands Ltd (Topshop) regarding the sale of t-shirts having picture of Rihanna, a singing sensation and recognized as a famous person. Rihanna is one of the most famous personalities in the musical world who is widely popular for pop music. The case is mainly concerned with the intellectual property law, which is based on acts pertaining to copyright protection. Specially mentioning, the case mainly reveals about the trading of unauthorised tank tops, which were considered as imprinting an image of Rihanna. The image has been taken from her album named ‘Talk That Talk’, which is her sixth album. The posture of the image reflects Rihanna as directly looking into the camera, which made the judge confused regarding whether she was willing to give permission to the company for launching tank tops with her image. However, later it was revealed that the picture was taken towards establishing connection between Rihanna and her audience. An independent photographer, recognised as third party, clicked the particular image of Rihanna. The photographer war considered as copyright owner of the photograph. The case of Rihanna is considered as a case of passing off, wherein, it is regarded that one trader is not allowed to sale their own products under the deception, which has made the case of Rihanna to be stronger. For instance, Perry v Truefitt (1884) has also elaborated about the case of deception under the common law tort of passing off.  

Contrary to the claims upheld by Rihanna, Topshop claimed that the photograph of Rihanna has been used after taking legal permission or licence from the authorised photographer. Moreover, as per the case scenario the usage of Rihanna’s photographs in the fashionable tops are noted to be unlicensed as well as further do not posses any sort of relation with Rihanna. Besides, it has also been noted that the swing tag and labels presence on the tank tops of Topshop does not reflect the name of Rihanna. This apparently damages the goodwill of Rihanna, which is associated with law of passing off (Evren Warnink BV v Townend [1979] AC 731).   It has also been stated that a large numbers of people are buying these T-shirts owing to their assumptions that Rihanna has been engaged in brand endorsement for Topshop, which is not actual in real life scenarios. This factor is indirectly damaging her goodwill among her audiences. Therefore, Rihanna has filed a case against Topshop for using her image as part of the promotional activities. The issue is relatively associated with the case of the case passing off, which directly indicating towards the misrepresentations of Rihanna’s goodwill for promoting the business of Topshop. For instance, the case of Reckitt & Coleman Products v Borden Inc ([1990] RPC 340 at 499), also reflects the similar context of damage and deception in case of goodwill due to the false endorsement. Therefore, the judgement, which has been provided by the Lord Oliver’s further, indicates towards the case of passing off. This case is also ‘reflects the trinity of confusion’. In addition, the law of passing off is mainly protecting to the damage of goodwill of an individual due to the unfair practice of a trader. The main copyright issues arose during the sale of top with Rihanna’s picture, as the company had copyright licence from that third party, considered as the independent photographer; however, the company never engaged itself in obtaining licence from Rihanna. Existence of such copyright issues resulted in conduct of the main case, wherein Rihanna achieved success.

Legal Issues Involved with Intellectual Property

Intellectual property rights are noted to be one of the most important issues that significantly influence the protection of intellectual property and its ownership related factors. The intellectual property rights are noted similar to other regular property rights. In addition, the intellectual property has been projected with three types of law i.e., trademarks, copyrights as well as patents that are considered significantly helpful in protecting the authorisation of the property. These three law rights such as trademarks, patents and copy rights will influences several people to secures their rights over their property along will enabling them to gain financial benefits.

The promotion of intellectual property rights for providing protection is noted to be quite effective in nature, since it will encourage several benefits for people being victimized to misrepresentation. Rihanna is not only a leading singer of music industry but she is also recognised personnel in music industry. The promotion of her image in the tank top of Topshop Company has created a damage of her reputation. Here the reputation of Rihanna is regarded to be an intellectual property, which has been misrepresented by the Topshop for its promotional activities. In relation to this, the promotion of intellectual property rights will further motivate the overall wellbeing of humanity and their capacities associated with creating, inventing and exploring new works within the domain of technology and humanity. Most of the time, traders are also involved in the unfair practice for expanding their business. For instance, Sony K K v Saray Electronics (London) Ltd [1983] FSR 302 also elaborates about the geographical expansion of business through unfair practice.  Apart from this, the protection of new property with adequate legal rights will further influence several people to provide commitment and contribute towards further innovation. The innovation of new cultural artwork as well as technical innovation will enhance the development of humanity within the society.  Besides, the intellectual property rights are highly useful in promoting overall development of the society.

The protection as well as promotion of intellectual property rights further encourages the economic development by creating new jobs as well as industries within the society. With the creation of intellectual property rights, the quality of the human life improves significantly. The intellectual property system is need to be quite competent as well as impartial in nature, so that it can be able to reduce security issues relating to the intellectual property. The intellectual property rights are highly useful in providing numerous benefits to the large numbers of persons, such that it could be able to fuel the progress of human life style. For instance, launch of new musical albums have been able to provide pleasures to several people are required to be registered under the copyright related protection act. Therefore, it is the prime responsibility of the creator or innovator to register its creation under the intellectual property rights. Without an adequate patent mark, the customers are unwilling to purchase the intellectual property from its owners. For instance, Qualitex Co. v. Jacobson Products Co, U.S.Supreme Court (1995) further elaborated about the different features of intellectual property act. 

Rihanna has decided to file a case of passing off in against that Topshop, which is mainly located in London. The case should contain the law of passing off over the intellectual property of Rihanna. The false promotion of Rihanna’s image over the tank top has resulted in damage over the goodwill of Rihanna. Herein, the law of passing off is mainly used for preventing a trader to misrepresenting any promotion by using famous person image in their services and products. This case is also called as case of passing off.       

The use of intellectual property rights is directed towards providing adequate protection to the patented products. The use of intellectual property rights will influences the growth in the fashion as well as garments industry. Owing to limited protections related to legal issues associated with fashion industry, the imposition of intellectual property rights would be helpful for highlighting its safe identity. Recently the fashion industry has been growing in a rapid manner that leads to several quick changes within the industry as well as in the society. For instance, Whirlpool Corporation v Registrar of Trade Marks, Mumbai is one of the most significant examples that help to understand protection rights of the company towards the product.

Precisely, it can be evaluated that the development of new strict policies will influences most of the people to contribute higher level of involvement. Therefore, it is important for the several legal authorities to launch new rules that solely concentrate towards the legal protection regarding fashion-designing clothes. Due to the advent of globalisation, advanced technical systems have influenced the fraud related incidences within the society. Therefore, to protect the fashion designs of several companies as well as individuals, there are three intellectual properly related theories i.e., copyrights, trade dress, and designs patterns, which will be used for security purposes. The case law related to Aston V. Harlee Manufacturing Co. [1960] HCA 47; (1960) 103 CLR 391, has been noted to be one of the most significant examples that are considered relatively helpful in highlighting the actual importance of trademark related acts.

The law of passing off protects any illegal and harmful effect such as fraud and misrepresentation. In this regard, it will be eminent to state that with the effective implementation of trade dress related law, people will be able to protect their property, and they will be able to gain significant prominences within that particular domain. The trade dress is considered as an important part of trademark law, which is significantly used for securing words, symbols, numbers as well as any particular phrases used in a product by the procurers. Besides, the fashion designers mainly used these kinds of trade laws for protecting their logos as well as brand names. In this regard, the case regarding Wal-Mart Stores v. Samara Brothers, 529 U.S. 205 (2000) reflects the proper implementation of trade dress related laws, which will be able to cover several new aspects associated with the case laws.

In the case of Wal-Mart Stores v. Samara Brothers, 529 U.S. 205 (2000), the trade dress rights has been segmented in to two sorts i.e., afford securities to the design of the products and allowing gourd to the product packaging. For instance, in this particular case study, the Samara Brothers suits a case against Wal-Mart for imitating their children designs and using it for their promotional purpose, which lead towards the development of complexities between these two organisations. Samara Brothers suits case against Wal-Mart; however, it failed to gain success from this case. According to the judgement, it can be identified that Wal-Mart has used the picture but in a secondary manner. On the other hand, in the case of Surya Roshni Ltd. v. Samana Steel Ltd., AIR 1997 Del 321,  it has also been elaborated about the temporary command that has been given to plaintiff for protecting its trademark.

The fashion industry has been witnessing several frauds related cases relating to its designing perspective. The fashion industry is one of the fastest growing industries, which contributes a majority of its revenue in the overall development of global economy. The advent of fast fashion concept within the fashion industry has further motivated several authorities to develop copyright-related laws within the industry. In addition, the fast fashion term is mainly defined as a forgery of any high-end designers’ designs by a low-end designer. It is relatively released by the designers in fashion shows by the high –end designers, which is noted to be one of the most significant impacts.

The case of Fenty&Ors v Arcadia Group Brand ltd. is one of the most controversial cases as it is related with two most popular entities of the world i.e., Robyn Rihanna Fenty as well as Topshop belonging to the Arcadia Group Brand. The case is mainly focused over the enforcement of unregistered trademark rights that has been used by the Topshop for launching their tank top products, which have an image of Rihanna. The law of passing off is mainly helpful for the owner of the intellectual property as this law is efficient in preventing one trader to misrepresent the goods as well as services and protect the goodwill of the owner.

Based on an assessment of the case, it can be identified that Rihanna was unaware with the fact that Topshop, a famous brand in their product name tank top, has used her photograph. Therefore, it can be highlighted that the case is not only presenting the image rights and privacy related issues, but is significantly related with the unregistered trademark related rights. This case is also known as case of passing off law. Mr. Justice Birss, the judge of this case has also declared that this particular case is not related with the ‘image rights’ and hence, the case was solved with the help of English law. In the case, Topshop has conducted a false endorsement that significantly supported Rihanna for achieving success and popularity amongst her followers.

In this particular case, Rihanna will be able to highlight her point, which proves that Topshop has been misrepresentation their products by utilising her image in a tank top. This factor is related with the false endorsement case, which led to the success of Rihanna. While providing judgement for the case judge has stead about the differences between endorsement as well as merchandising, which also helps to understand about the actual confusion within case. Another strong point associated with the judgement in favour of Rihanna is that she have a goodwill, which has been damaged due to false endorsement of Topshop. The goodwill of Rihanna have to be protected with the law of passing off. Since Rihanna had goodwill in public, the judge took decision in her favour. Moreover, the issue is based on the customer’s perceptions and nature of market. It cannot be considered as the law that image pertaining to a personality such as Rihanna on products such as Tank top can be associated with creating a representation suggesting the authorization of the product. In addition, Rihanna has her distinct reputation amid several people, which can get misrepresentation owing to the false representation created due to the image imprinted on top. The company Topshop has further utilised Rihanna’s brand name for increasing the sale of their products and create a negative representation relating to Rihanna’s brand endorsement. This misrepresentation is further recognised as damaging her goodwill and reputation. Hence, with due consideration to the aforementioned aspects, the court gave judgment on behalf of Rihanna.

Conclusion

By reviewing the entire study, it can be indentified that the intellectual property rights are significantly helpful in highlighting the positive aspects of social responsibility. The intellectual property rights are considered beneficial for ensuring security as well as protection of intellectual property, which significantly implies the artwork as well as technical innovation. There are basically three types of laws i.e., trade mark, copyrights as well as patent rights, which has an influence on the protection of intellectual property and its ownership. By evaluating the entire evidences, it can be identified that the intellectual property rights is highly beneficial for providing proper protection to any kind of art work and further influences the authenticity of the property’s actual ownership. Therefore, it can be identified that most of the producers are able to provide security to their artwork as well as cultural work. In case of fashion industry, the advent of fast fashion phenomenon has also influenced the advent of intellectual property rights. In order to provide proper support for protecting the ownership, the trade mark law, copyrights as well as patent rights are utilised. In the case of Fenty&Ors v Arcadia Group Brands Ltd., Topshop for has used the images of Rihanna without taking her legal permission for image printing. In this particular case, the judge made the judgement in favour of Rihanna, since the facts represented in the case were associated with false endorsement and goodwill, along with misrepresentation that had an influence on Rihanna’s image in the public.