Finding for C:
1. C had ample goodwill to succeed in a passing off action of this kind. C was a world famous pop star who ran very large merchandising and endorsement operations. C was regarded as a style icon by many people, predominantly young females aged between about 13 and 30. Such people were interested in what they perceived to be C’s views about style and fashion. If C was seen to wear or approve of an item of clothing, that was an endorsement of that item in the mind of those people. Further, the fact that the item was a more design led fashion garment, rather than a lower quality simple plain t-shirt, would not be understood to rule out, in the mind of a purchaser, the idea that it was a product endorsed by C or an item of C’s authorised merchandise.
2. Misrepresentation was the real issue. J Birss considered various aspects of the particular circumstances of the case, namely that:
(i) The absence of comments on D’s website indicating that anyone had bought the t-shirt in the belief that it had been authorised by C and lack of other evidence of any actual confusion were relevant points in D’s favour but not determinative.
(ii) D had made considerable efforts to emphasise connections in the public mind between the store and famous stylish people, such as C. An important example of this was a shopping competition held by D in 2010, offering the entrants the chance to win a personal shopping appointment with C at their flagship store in Oxford Circus.
(iii) A week or two before the t-shirt was on sale, D had tweeted the fact that C was visiting the store. J Birss rejected D’s submission that this was simply chatter and gossip. Particularly bearing in mind the age and nature of the relevant customers, the internet and social media were an important part of both C and D’s business. They constituted some of the key channels by which both C and D communicated with their fans and customers. D had mentioned C because it thought it would sell more products by doing so.
(iv) The fact that there was no indication of artist authorisation on the swing tag or neck label pointed firmly against authorisation but was not strong enough to negate the impression that the garment was authorised. Although a good number of purchasers would buy the t-shirt without giving the question of authorisation any thought at all, a substantial portion of those considering the product would be inducted to think it was a garment authorised by the artist. C’s fans would recognise the particular image of her as associated with her recent album. For those persons, the fact that it was authorised would be part of what motivated them to buy the product. Some would buy the t-shirt because they thought C had approved it, others because of the value of the perceived authorisation itself. In both cases, they would have been deceived.
3. If, as J Birss had found, a substantial number of purchasers were likely to be deceived into buying the t-shirt because of a false belief that it had been authorised by C, then that would obviously be damaging to C’s goodwill. It would amount to sales lost to C’s merchandising business and represent a loss of control of C’s reputation in the fashion sphere.