Rihanna Trial Day 4: “What is a bralette anyway?”
The final day of a trial gives both side’s Counsel the opportunity to reiterate their strongest points.
Topshop’s Counsel referred to Team RiRi having placed a huge reliance upon a bundle that came from nowhere on Day 3 of the trial whilst cross-examining Topshop’s Head of Marketing containing a collection of print outs from Topshop’s blog and other social media. Counsel for Topshop said that RiRi’s Counsel was wrong in suggesting that Topshop had sought to engender a connection between Topshop and Rihanna, saying that the vast majority of examples in the bundle simply appeared from search results where both the words Rihanna and Topshop appeared in the same article, blog or tweet. For example, many related to entries to a one-off competition run on Topshop’s blog to win a shopping experience with Rihanna.
Whilst Rihanna is iconic, Team Topshop argued that not everything about her can be controlled by her or her management team. She and her image are in the public domain, and yet whilst Team RiRi maintained this wasn’t an image rights case Topshop’s Counsel asserted that Counsel for RiRi spent a long time cross-examining witnesses in relation to image.
In respect of missing witnesses, Topshop maintained that as there were no pleaded allegations of bad faith no particular witnesses were necessary from their side, but the key missing witness was Rihanna. Her management decided not to call her as a witness in her own case and then tried to tell the court what she thought without even asking for her opinion.
In response to Team RiRi’s assertion that Topshop’s garment supplier was tainted by the fact that he had an interest in the case, witnesses for Rihanna, such as her spokesperson, clearly also had an interest in the case yet Topshop had not taken issue with that.
Topshop’s conclusion was that there was no misrepresentation, and so no passing off.
Before Counsel for Rihanna began his closing submissions, the judge had a question…what was Rihanna wearing in the image on the t-shirt in question? He had thought she was wearing dungarees but he had read somewhere it was a “bralette”. Cue much laughter from the court as Counsel for both sides and the judge debated exactly what a bralette is.
Counsel for Rihanna submitted that just because there are some situations where the use of a third party image is lawful does not mean that all situations are such and that each case must be considered on its own facts. Evidence had been shown that there is a perception amongst some users of 3rd party celebrity images that there is an inherent risk that, without a disclaimer on a swing tag, the public may be confused. There is now a challenging of the concept that “as long as we don’t use the artist name we are okay”. The circumstances of the sale are relevant: the t-shirt was sold in a reputable high street outfit, sold amongst other t-shirts which gave an impression of being authorised and the image was of Rihanna in the same hairstyle, clothing and make up as in her “We Found Love” video which substantial numbers of her fans would have seen. (In response to this point, Topshop’s Counsel pointed out that they had counted 23 costume changes in the video.)
Counsel for Rihanna accepted that the social media materials in the “bundle from nowhere” were not engendering a connection that would correlate to an endorsement but they formed part of the background that Topshop’s customers were to view the t-shirt in.
The judge pointed out that the law of misrepresentation still includes a deception aspect. It is not enough that customers were merely confused or believed that Rihanna authorised the product. The customer had to be deceived into actually buying that product.
RiRi’s Counsel said that due to the level of devotion Rihanna’s fans had for her, a materially different situation would result if they knew the money they had spent on the Topshop t-shirt was lining the pockets of Sir Philip Green and not their heroine, Rihanna. He went on to say that the t-shirt caused damage to Rihanna and her brand as this was not an image she or her team would have approved. He made the point that due to the nature of Rihanna’s schedule and work, and as trial dates can slip, it was not appropriate for her to be called as a witness.
We will be back as soon as the judgment appears.
Rihanna Trial Day 3: SOS for Topshop’s T-shirt supplier if RiRi wins the fight
The final day of cross-examination was held on Friday as Team Topshop put forward their witnesses.
It emerged that should Rihanna succeed in this passing off claim, the supplier of the T-shirt, Knitmania, will likely be forced to foot the legal bill which is greater than the net worth of his company. More on that below.
Topshop “seeking to engender a connection between Rihanna and Topshop”
First up on Friday morning was Topshop’s Head of Marketing. Counsel for Rihanna attempted to show that there were numerous incidents where Topshop’s web-blog featured articles referencing Rihanna when she was spotted in public wearing Topshop garments. He suggested that Topshop were “seeking to engender a connection between Rihanna and Topshop in the minds of customers". The witness said that it is normal practice in the fashion industry to comment on celebrity outfits. She said that consumers today are very savvy - they know the difference between a fashion collaboration and a celebrity simply wearing an item from Topshop. Rihanna’s Counsel went on to discuss Topshop’s personal shopping service, a supposedly discrete service. In February 2012 it seems Rihanna used this service and her attendance at the Topshop store in Oxford Street was very quickly picked up by the press. Rihanna’s Counsel highlighted that a Tweet was sent from Topshop’s Twitter feed announcing Rihanna was in the store. Again RiRi’s Counsel suggested that as Rihanna is a style icon, Topshop were seeking to engender a connection between the star and the store. The witness said that the Marketing team were not responsible for the Tweet and reiterated that it is Topshop policy not to publicise the use of the personal shopping service by celebrities to the media.
The next witness was the Managing Director of Knitmania, the t-shirt supplier. Rihanna’s Counsel showed the witness several t-shirts featuring Rihanna’s image and asked him to comment on whether he thought these t-shirts to be authorised or not. Counsel suggested that there was no universal practice of marking tags of authorised garments with labels stating they were authorised. The witness disagreed stating that whenever his company produces official merchandise or official fashion garments, every garment has to have swing tags and labels that state it is an authorised piece. The witness was asked to explain the process of obtaining licences in the case of 3rd party images. The witness stressed that Knitmania always obtain the appropriate copyright licences. Rihanna’s counsel questioned that where garments were not officially endorsed by a celebrity was it not common sense to add a disclaimer that the article was not licensed by that celebrity? The witness didn’t think a disclaimer was needed.
Rihanna’s Counsel referred to an email chain between Knitmania and Topshop highlighting that Topshop appeared keen to ensure that they were legally covered by Knitmania in relation to the image. The witness said that this type of discussion was completely normal and that his customers always asked such questions. Counsel asked whether there were any discussions between Knitmania and Topshop in relation to the circumstances in which the t-shirt would be sold and whether the public would be confused or misled in thinking that the t-shirt was authorised by Rihanna. No such discussions had taken place. Rihanna’s Counsel suggested that because there was an indemnity in the contract between Topshop and Knitmania which would leave Knitmania on the hook for the legal fees should Topshop lose, and that Knitmania’s net worth was less than those fees, the witness had a strong incentive to help Topshop win. The witness said that if he had thought there was a problem with the t-shirt he would not have made it.
Topshop’s PR Manager also gave evidence that Rihanna is not on a special list which gives a discount to the individuals on that list. She explained that the list was actually mainly comprised of fashion editors and stylists and sometimes photographers who are considered friends of Topshop. She clarified that Rihanna receives ad hoc discounts and that sometimes Topshop are approached by Rihanna’s management when Rihanna is in London. Rihanna’s Counsel suggested that there was a benefit that the public see Rihanna shopping in or wearing Topshop clothes. “Absolutely”, agreed the witness.
Today the trial takes a break before Team RiRi and Team Topshop have their final day in Court tomorrow with the closing submissions from each side, when we will post our final report from the trial and then await the judgment.
Rihanna Trial – Day Two: It’s complicated – RiRi is here but she’s not and she hasn’t actually commented on the T-shirt…
Day two of the Rihanna trial saw complications with witnesses and time zones for Team RiRi, and a surprising admission – see further below. A witness from Live Nation (Rihanna's official merchandising company) had decided the night before he would not give evidence at all. Team RiRi made a last minute proposal to "substitute" the Live Nation witness with another employee from Live Nation. Counsel for Topshop forcefully objected to the proposal and it was left for the judge to rule that there would be no substitute players at such a late stage.
Team RiRi's first witness of the day was a trainee from RiRi's lawyers. She had taken photographs of the t-shirt in question in a Topshop store surrounded by other image t-shirts. She said that the proximity of surrounding t-shirts gave her the impression that the t-shirt bearing the Rihanna image was an authorised garment. Counsel for Topshop suggested that since she had been sent to Topshop to obtain evidence and draw up a witness statement, any opinion she formed was in her capacity as an intellectual property trainee solicitor and not as a general consumer.
Second up for team RiRi was a Mr Coyle, of the Beanstalk Group, a licensing professional. Mr Coyle said that consumers buy into a brand and that they would expect authorised goods to be sold by a reputable retailer such as Topshop. In his view, it was that expectation of authorisation that was misleading in this case. Counsel for Topshop suggested that as his business was not industry specific and he had no retail experience on a shop floor, he did not know anything about the minds of people who bought authorised goods.
Third up for team RiRi was a Ms Pardo, RiRi's creative director, who admitted that Rihanna is in London this week. So it seems she’s here but she’s not. It also transpired in cross examination that there had been no communication with Rihanna herself about this matter and that Ms Pardo has never discussed the Topshop t-shirt with RiRi despite being in regular contact with her. Topshop Counsel put it to Ms Pardo that she was speaking for RiRi without having even spoken to her about it. Ms Pardo maintained that she knew what Rihanna did and did not like. The image would, in Ms Pardo's opinion, be classed as unflattering by RiRi because of the “rolls” under the arms, the teeth biting into the lips and the cloudy eyes. However, she admitted that she had never actually asked Rihanna this.
The final witness was Mrs Perez, Rihanna’s spokesperson. She gave evidence via video link in New York. In a somewhat painstaking cross examination, it appeared Mrs Perez had not read her witness statement for some time and could not recall several events mentioned within it. Counsel for Topshop attempted to ascertain whether this was due to a lack of recollection or a lack of knowledge of such events. She suggested that it was a management decision that Rihanna herself would not need to appear as a witness.
Mrs Perez’s understanding of the word “infringement” in terms of Rihanna goods was an article that had not been authorised or licensed by Rihanna or her companies. Topshop’s Counsel highlighted that Rihanna’s logo, a stylised “R”, was of key importance in a merchandising contract and that it featured prominently, was widely used on authorised goods and was a focal reference for Rihanna. Mrs Perez agreed that it was one of the primary symbols for Rihanna’s brand.
The excitement continues tomorrow with witnesses for Team Topshop. Once again, we’ll be back with the latest update.
Rihanna Trial - Day One: “Where is Rihanna?” asks Arcadia's counsel
The much awaited case between Rihanna and Topshop (owned by Arcadia) finally commenced yesterday. Counsel for Rihanna maintained that this was a passing off claim and not an attempt to push the boundaries of the law in relation to image rights. He stressed that whether or not there has been a misrepresentation in respect of the t-shirt sold by Topshop bearing Rihanna's image was the key question in the case. As the judge put it to Rihanna's counsel: "If there is no misrepresentation, you lose".
Counsel for RiRi went on to explain that as Rihanna merchandises garments there can be no doubt that if Topshop have misrepresented its t-shirt as being an official Rihanna t-shirt then Rihanna's goodwill will have been damaged. Rihanna's counsel submitted that RiRi fans wanting RiRi memorabilia have a desire to own items issued by RiRi and not a substitute. The fact that a t-shirt is endorsed by Rihanna is a key quality for the consumer.
Team RiRi went on to elaborate the circumstances of sale of the t-shirt at issue. Topshop is a well-known high street store and expect Topshop’s garments to be official. It is very different to the expectation consumers might have from a market stall. The Rihanna image was not taken in a public place, but was from a photo shoot. RiRi is shown wearing clothing that fans would expect to see her in context as a singer. The t-shirt was placed with other officially endorsed items such as a t-shirt bearing Mickey Mouse.
Team RiRi also claim that Topshop wanted an exclusive product bearing Rihanna's image and knew this was not possible if they used official Rihanna garments. Whilst Topshop may have an indemnity with their supplier, RiRi's team made it very clear that the issue here is the sale of the image on a t-shirt to the public which was a decision made by Topshop and not the supplier.
Team RiRi maintain that Topshop have not called the relevant witnesses involved in the decision making process regarding the t-shirt or indeed those from the relevant buying department. Team Topshop pointed out in reply that Rihanna is not appearing nor has she even given a witness statement in the trial and that if there was a witness missing it was the Claimant herself.
The trial did hear from two witnesses - Team RiRi called the first witness, a representative from River Island, who have a fashion collaboration with Rihanna. Team Topshop highlighted the fact that River Island have had a large marketing campaign in respect of the RiRi collection, that the items are heavily branded and the message of Rihanna's involvement was projected to the public. As Topshop's counsel said: "you want to shout it from the roof tops". The witness agreed. Team Topshop called the second witness, a representative from one of Topshop’s buying departments. Counsel for Rihanna discussed a t-shirt sold by Topshop that bears an image of Johnny Depp. Taking the witness through various online customer comments regarding the t-shirt, counsel highlighted that despite the fact that the name “Johnny Depp” did not appear on the garment, customers had clearly bought it because it was an image of Johnny Depp. Lengthy discussions were also had as to the differences between merchandise garments and fashion garments.
The case continues this morning and the witness line up is likely to include the testimony of Rihanna’s spokesperson by video link from Toronto. We’ll be back tomorrow with the latest updates.