## Facts

- A UK fashion retailer sold women’s T-shirts bearing a large, clearly recognizable photograph of a world-famous recording artist.
- The photograph was taken during a music-video shoot connected to the artist’s then-recent album imagery.
- The retailer obtained a copyright licence from the photographer but did not obtain the artist’s permission or any licence from the artist’s merchandising entities.
- The artist operated substantial merchandising and endorsement businesses, including authorized clothing and image-based merchandise, and was widely perceived as a style icon among young women.
- The retailer had previously publicized events and promotions linking its brand with the artist, contributing to an apparent commercial association in the public mind.
- The T-shirt and its presentation did not expressly claim “official” status and did not include any disclaimer indicating lack of authorization.

## Issues

1. Whether the claimant had relevant goodwill in the UK connected to merchandising and fashion-related goods.
2. Whether sale of the image-bearing T-shirt amounted to a misrepresentation that the product was authorized, approved, or endorsed by the claimant.
3. Whether the misrepresentation was likely to damage the claimant’s goodwill (including through loss of control over commercial reputation and diversion of sales).
4. Whether the claim improperly sought a free-standing “image right” rather than relief limited to established passing off principles.

## Decision

- The High Court found for the claimants on passing off and held the retailer liable.
- The court held there is no free-standing “image right”; the claim succeeded only because the elements of passing off were proven on the specific facts.
- The court found substantial goodwill in the claimant’s merchandising and endorsement activities, extending into fashion-related markets.
- The court found a likelihood that a substantial number of consumers would believe the T-shirt was authorized or endorsed, based on the cumulative context (the nature of the image, the retailer’s prior public association with the claimant, consumer expectations of celebrity collaborations, and the absence of any disavowal).
- The court found likely damage, including loss of control over the claimant’s endorsement reputation and interference with authorized merchandising and licensing opportunities.

## Legal Principles

- English law does not recognize a general right to control commercial use of one’s image; celebrity claims must fit within established causes of action such as passing off.
- Passing off requires proof of (1) goodwill, (2) misrepresentation likely to deceive the relevant public, and (3) likely damage to goodwill.
- The mere sale of apparel bearing a celebrity image is not, by itself, passing off; liability depends on whether the overall circumstances convey a false message of authorization or endorsement.
- Likelihood of deception may be inferred from context; extensive proof of actual confusion is not required.
- Damage in passing off includes loss of control over the commercial exploitation of goodwill and the risk of sales diversion or dilution of authorized brand value.

## Conclusion

The court held that, although there is no general “image right,” the retailer’s sale of a T-shirt bearing a particular celebrity photograph constituted passing off because the surrounding context made consumers likely to infer endorsement, thereby causing likely harm to the claimant’s established merchandising and endorsement goodwill.


Fenty v. Arcadia Grp. Brands Ltd., [2013] EWHC 2310 (Ch) (Eng.)