Following a protracted legal dispute Nadene Lomu has reached a resolution with the estate and executor, of the late All Black rugby legend, Jonah Lomu.
In a statement issued by Nadene Lomu and her family it was confirmed that "All trademark rights, usage and ownership regarding Jonah's Name, Image, and Likeness have been legally transferred and vested solely in me in accordance with Jonah's will."
Nadene Lomu's dispute was summarized in my LinkedIn post following the IPONZ trade mark invalidation decision in August 2024. The dispute was with the company Stylez Limited and the executor of Jonah Lomu's will, Mr. Christopher Darlow.
The resolution of the dispute was confirmed in a recent NZ Herald Article on 10 August 2024 although, in the article it was reported that Mr. Darlow said, "I'm unable to speak to the media further on Lomu matters."
IPONZ Database
A recent search of the Intellectual Property Office of New Zealand (IPONZ) trade mark database confirms that the JONAH LOMU pending and registered trade marks have been assigned and are in Nadene Lomu's name as owner.
Nadene Lomu's JONAH LOMU and other trade marks (IPONZ)
Nadene Lomu's Statement
Nadene Lomu's full statement can be seen below:
Nadene Lomu's Statement
Ongoing Disputes
In her statement Nadene Lomu also addresses the New Zealand Film Commission (“NZFC”) funded documentary about the life of Johah Lomu, she states "The Lomu documentary, currently in production, will continue; however, as it stands, Brayley, Dhyreille and I are no part of it and will make no further comment". As reported in my earlier post Mrs. Lomu sent a cease-and-desist letter to the NZFC and all producers involved - filming was stalled pending the resolution of the IP issues.
The Immortals of New Zealand Rugby
According to the NZ Herald article Nadene Lomu has also accused the Australian publisher, Rockpool of exploiting the JONAH LOMU trade mark and other IP rights. The book The Immortals of New Zealand Rugby by Jamie Wall is unlikely to infringe the registered trade mark or other IP rights. Jonah Lomu's image is on the cover of the book although, as are other All Black greats. I have not read the book but for me, it does not seem to indicate endorsement and is no different from other titles, rankings or lists of the best intergenerational players. It is common to do this across all sports. The use seems to be consistent with the doctrine of fair use and as long as the photographic image of Jonah Lomu on the cover has been licensed, it seems that Nadene Lomu and others will have difficulty preventing this use.
The Immortals of New Zealand Rugby by Jamie Wall
Images on T-Shirts
In relation to the other use complaint - Jonah Lomu's image on t-shirts - as reported by Nadine Lomu, I can see that this has now been taken down from the alleged infringer's website www.pekelo-clo.com.
www.pekelo-clo.com alleged T-Shirt infringement
Whether Nadine Lomu might have better grounds here, is arguable. In the UK courts the pop star Rihanna won a legal battle against Topshop over a T-shirt bearing her image. See the BBC report here and the Court of Appeal judgment Fenty v Arcadia Group Brands Ltd (t/a Topshop) [2015] EWCA Civ 3 (22 January 2015).
In that case, while it was recognized that there is no image/personality right in the UK, Rihanna previously had an association with Topshop, through competitions and publicity appearances. Further the photo on the t-shirt in that case was similar to a recent one used on Rihanna's album cover. That meant that there was an increased likelihood that purchasers would be misled into thinking that Rihanna had endorsed the product and so Topshop were found to be "passing off". The Court emphasized that the case was fact specific, and that made Rihanna's case stronger than usual.
Some commentators have remarked that when consumers encounter images of bands, celebrities, sports stars on t-shirts in street markets or elsewhere, consumers are unlikely to think that those bands have anything to do with the t-shirts, so there is no passing off. Whether that is the case for Nadene Lomu, and the image of Jonah Lomu on the t-shirt, it doesn't matter now, as it has been removed. However, if the copyright in the JONAH LOMU photographic image has been licensed to Pekelo and there is no association between Jonah Lomu and Pekelo previously, based on the Fenty v Arcadia Group Brands Ltd (t/a Topshop) case Nadene Lomu is unlikely to have very strong grounds to argue "passing off".
Concluding remarks
It seems like the Lomu family have found some comfort in the resolution of their principal IP dispute although, given how popular Jonah Lomu was as a player, I anticipate this is not the last of it and that other IP issues are likely to come up from time to time for Mrs. Lomu and her family.
