13 Sep PASSING OFF – ARIANA GRANDE SUES FOREVER 21 OVER LOOKALIKE CAMPAIGN

Ariana Grande has launched a claim against fast fashion retailer Forever 21, alleging they used her likeness in their branding to claim a false affiliation with the star.

Grande is seeking at least $10m (£8.2m) in damages for violation of her right to publicity, false endorsement, trademark infringement and copyright infringement.

The claim alleges that Forever 21 sought to partner with Grande in December 2018 but the star refused to agree a deal.

The retailer then launched a campaign which used a model who was a Grande lookalike wearing a high ponytail – the star’s signature look – and which used imagery from the video for Grande’s single 7 Rings, released in January.

“The resemblance is uncanny and Forever 21’s intent was clear: to suggest to the viewing public that Ms. Grande endorsed Forever 21, its products, and was affiliated with Forever 21” the claim says.

“Rather than pay for that right as the law requires, Defendants simply stole it by launching a misleading campaign across its website and social media platforms primarily in January and February 2019.”

“The campaign capitalized on the concurrent success of Ms. Grande’s album Thank U, Next by publishing at least 30 unauthorized images and videos misappropriating Ms. Grande’s name, image, likeness, and music in order to create the false perception of her endorsement.”

Forever 21 has said in response that it does not comment on pending litigation but is hopeful it will find “a mutually agreeable resolution” and can work with Grande in the future.

In a similar action earlier this year, Kim Kardashian-West won $2.7m in damages after accusing Missguided USA of ripping off her outfits, claiming the brand doesn’t just “replicate the looks of celebrities” but “systematically uses the names and image” of stars to promote its website.

Unlike in America, there is no right in English law to control one’s image, and false endorsement claims in England and Wales are usually brought on the basis that there has been “passing off” by the defendant in giving the public the false impression that the claimant is affiliated with their goods.

The most well-known recent example was a case brought by Rihanna against Topshop in which the singer succeeded in her claim for passing off over the sale of a t-shirt featuring a photo taken from a video shoot for her Talk That Talk album.  Passing off claims are quite often threatened (and sometimes brought) against broadcasters and television producers, particularly where programmes incorporate an established name or trade mark within the programme’s title.  Whilst often defensible on the basis that use of the mark is descriptive rather than being used to denote the origin or source of the programme, advice should be sought at an early stage, particularly if the owner of the mark is known to be litigious.