By: Sepideh Nassabi (Partner) - Trademark and Intellectual Property Group and Carol Liu(Associate) – Insolvency and Litigation Groups

Be it notoriety or celebrity, being known for your name and image means you can get paid handsomely (pun intended). It certainly wouldn’t be wrong to say that Justin Bieber’s mega-stardom makes him a household name – he is a multi-award-winning singer with a powerful social media presence. Any controversy between him and a major company or brand is bound to be a powder keg. On December 19, 2022, fast fashion company H&M exploded onto entertainment news headlines after Justin shared an Instagram story with his more than 270 million followers and photos of H&M sweater dresses and canvas bags bearing Justin’s face.

According to Justin’s Instagram story: “I didn't approve any of the merch collection that they put up at H&M… all without my permission and approval. SMH I WOULDN’T BUY IT IF I WERE YOU. The H&M MERCH THEY MADE OF ME IS TRASH AND I DIDN’T APPROVE IT DON’T BUY IT.” Shortly after, the products featuring Justin’s likeness were removed from the H&M website.

A Recognizable Individual

Justin Bieber is certainly a “recognizable individual”, so much so that it sounds like an understatement to describe him that way. Commonly known as “personality rights”, a recognizable individual has the exclusive right to control the use of their personality and to commercially exploit said personality. In Ontario, this intellectual property right is protected by common law. Violation of this right is known as “appropriation of personality”, a tort at common law.

Merchandising is one of the most popular and lucrative ways of such commercial exploitation, and Justin himself is no stranger to the business of making and promoting merch.

Don’t Pull an H&M

Although H&M told People Magazine that “as with all other licensed products and partnerships, H&M followed proper approval procedures,” the speed at which H&M discontinued sale of the products in question seems to speak for itself. It is likely that, behind the scenes, representatives of both parties are now engaged in negotiations and working out a plan for settling the dispute over alleged infringement. However, Justin’s public criticism of H&M has surely done damage to the public opinion of H&M among his loyal fans, which is not financially compensable.

The lesson learned by H&M through this incident is applicable to businesses everywhere that are looking to get in the merchandising game. If you’re using images or likeness or want to, ensure you have the right agreements and permissions in place. If you’re a personality whose likeness is being used, there are steps you can take to protect it. In either case, call an Intellectual Property lawyer.

If you have questions regarding your trademark or intellectual property, or an infringement of your intellectual property rights, please contact Sepideh Nassabi, Intellectual Property Lawyer and Registered Trademark Agent, at snassabi@mindengross.com.