It may get “Physical” between Dua Lipa and Samsung

Dua Lipa is suing Samsung Electronics for $22 million for alleged copyright infringement, trademark infringement and breaching her publicity rights.

Samsung used an image of Dua on their TV boxes, which she claims was an unauthorised use of an image in which she owns all the rights, title and interest. Dua claims that, despite repeated requests to stop using her image, Samsung refused to do so and continued to sell its TVs with Dua’s image front and centre on the box.

Whilst the claim has been issued in the Californian federal court, the claim is making us “Hallucinate” about Rihanna’s successful claim against Topshop back in 2013, in which Rihanna sued Topshop for the unauthorised use of her image on their t-shirts.

Topshop were a “Prisoner” to the Court process, and Rihanna won her claim and an injunction preventing Topshop from further use of her image. Topshop tried to appeal the judgment, which was dismissed by the Court of Appeal in 2015.

There are no image rights under English law that automatically give a person the control over the use of their image, however, Rihanna’s landmark case demonstrates that high-profile individuals may be able to enforce their rights under the common law protection against “passing off” as well as, or instead of, claims for copyright/trademark infringement under the provisions of the Copyright, Designs and Patents Act 1988 or Trade Marks Act 1994.

“Illusion” by passing off

“Passing off” is a cause of action in circumstances where somebody misrepresents their goods or services as those of another. Classically, to successfully establish a claim in passing off, the claimant must establish:

“Passing off” is a cause of action in circumstances where somebody misrepresents their goods or services as those of another. Classically, to successfully establish a claim in passing off, the claimant must establish:

1. The claimant has an established reputation or goodwill associated with their goods or services.
2. The defendant made a representation (intentional or not) that leads consumers to believe that their goods/services are those of the claimant.
3. The claimant has suffered, or is likely to suffer, damage as a result of the misrepresentation.

The Court of Appeal found that the unauthorised use of Rihanna’s image constituted “passing off” as the product gave the impression to the consumer that Rihanna endorsed it and the impression was so significant that it affected the consumers' buying decision.

If pursued in the English courts, Dua might have brought a claim in passing off against Samsung. It is understandable that Samsung wanted Dua to “Be The One” on the front of their TV boxes, with one fan commenting that they would get the TV “just because Dua is on it.” Dua’s legal team have contended that the unauthorised use of Dua’s image is encouraging sales of the TV by falsely conveying to consumers that she has endorsed the product.

(New) Rules

It is “No Lie” that stars like Rihanna and Dua Lipa have the means (and will) bring proceedings to protect their image.

You should ensure that all necessary permissions and consents are in place in your promotional campaigns to avoid what could be very costly litigation.  

For more information or to speak about the issues raised in this article, contact Georgia Barber on 0191 211 7803 or at [email protected].