Last month, the UK Supreme Court issued its highly-anticipated
decision in Iconix Luxembourg Holdings SARL v Dream Pairs
Europe Inc and another [2025] UKSC 25. Helpful background to
the dispute can be found in this article prepared by my colleague Rachel
Platts earlier this year.
One of the most important aspects of the Supreme Court’s
ruling is its recognition that confusion arising after a
purchase – when a product is seen in use – can be
relevant when assessing trade mark infringement under Section 10(2)
of the Trade Marks Act 1994. The decision firmly establishes that
consumer perception in real-world, post-sale settings matters when
evaluating both similarity and likelihood of confusion. This has
potentially far-reaching consequences for brand owners,
particularly those facing the growing threat of
“lookalikes” and “dupes” in highly visual
markets.
The Supreme Court’s Findings
It’s worth noting, firstly, that Dream Pairs succeeded in
the appeal. However, this was largely despite the
Court’s findings on post-sale confusion. The Supreme Court
reasoned that the Court of Appeal had erred in overturning the High
Court’s original decision, which was held in Dream Pairs’
favour, as it was neither irrational nor affected by any error of
law or principle. As such, the Court of Appeal was not justified in
substituting its own assessment of the likelihood of confusion in
place of the High Court’s assessment at first instance.
Although Dream Pairs was ultimately successful, the Supreme
Court disagreed with its submissions relating to post-sale
confusion. The Court looked at two issues in particular:
Similarity Issue: Dream Pairs argued that
courts should assess similarity based solely on the intrinsic
features of the marks in a side-by-side comparison, without
considering post-sale viewing conditions unless intrinsic
similarity is first found. The Supreme Court rejected this,
confirming that realistic and representative post-sale conditions
can be taken into account when assessing both the similarity of the
marks and the likelihood of confusion. This approach
aligns with the CJEU’s decision in Equivalenza, which
supports considering overall impression and real-world
perception.
Confusion Issue: The Court rejected Dream
Pairs’ argument that post-sale confusion only constitutes trade
mark infringement if it affects a later sale or transactional
decision. It also dismissed the claim that such confusion must
cause damage at the point of sale to be actionable. The Court found
no support for these limitations in CJEU case law, the TRIPS
Agreement, or the EU Directives, and saw no principled basis to
adopt them.
The Court’s findings on similarity and confusion are likely
to carry meaningful implications for brand owners (and defendants)
in trade mark disputes.
On similarity, the Court confirmed that assessments aren’t
limited to a side-by-side comparison of the marks’ intrinsic
features. Instead, courts can consider how consumers perceive the
marks in “realistic and representative” post-sale
environments – reflecting how products are actually seen and
used ‘in the wild’. This context-driven approach opens the
door to findings of greater (but not lesser) similarity than would
arise from a purely side-by-side comparison as it broadens the
scope of what constitutes an infringing mark. On confusion, the
Court made clear that post-sale confusion can amount to
infringement even if it does not occur at the point of sale or
influence a purchasing decision. It rejected the argument that
post-sale confusion must affect a later transaction or damage the
essential function of the mark as a guarantee of origin.
Dupes & Lookalikes: misattribution beyond the
till
For brand owners, the case marks clear judicial recognition that
brand harm doesn’t end at the till – it continues
wherever the product is seen and associated.
This has particular resonance in the dupe economy, where
products often gain visibility not just in private, but on social
media, in public settings, among peer groups etc. The judgment
aligns with the commercial reality that many consumers who buy
dupes do so knowingly – they understand that they are
purchasing a lower-cost alternative, not the original premium
product. Their buying decisions are often driven by factors such as
price, availability and curiosity rather than confusion at the
checkout. However, the decision affirms that whilst confusion at
the point of sale may be rare, that doesn’t mean harm isn’t
being done. Indeed, the main value of a dupe is arguably in how it
looks after purchase, when it’s seen by others. This
is especially relevant in sectors such as beauty, fashion, and
cosmetics, where the product’s appearance in social contexts
(Instagram posts, parties, gyms – all potentially
“realistic and representative” post-sale environments)
functions as a signal of style, identity or status.
In the food and drink space, discount supermarkets often create
‘lookalike’ products which mimic not only the taste and
quality but also the look and feel of well-known brands. To date,
it has generally been the case that a likelihood of confusion claim
is destined to fail provided the lookalike deploys a very different
distinctive name, logo, or both on its packaging. Brand owners
have, instead, needed to rely on timely and well-crafted design
registrations (see, for example, Aldi’s infringement of Marks
and Spencer’s snow globe light up gin bottle design) or the
existence of reputation and subsequent unfair advantage by the
alleged infringer (such as in the recent Thatchers Cider v Aldi
decision).
However, the Iconix ruling could provide a further
means for rights holders to succeed in infringement actions against
supermarket lookalikes on the basis of a likelihood of post-sale
confusion, especially for products (a) that have distinctive (and
protected!) packaging elements, beyond just brand names and logos,
that are likely to be mimicked by third parties; and (b) that are
often seen in shared, social or public contexts.
Conclusion
Iconix clarifies that trade mark infringement can be based on
confusion after purchase, reflecting real-world consumer behaviour.
This seems particularly relevant in the context of dupes and
lookalikes. Together with smart registrations and enforcement, it
offers brand owners a potentially powerful new tool to protect
their visual identity beyond the till. It will be interesting to
see how courts and registries interpret “realistic and
representative” post-sale environments. Expect birthday
parties celebrated with caterpillar cakes, beach bags stocked with
suncream, and rooftop brunches featuring lemon cider to soon find
their way into evidence and pleadings alike.
Practical Advice for Brand Owners
Audit packaging for distinctive, recognizable elements and seek
registrations accordingly.
Gather evidence of real-world use, especially online and in
social contexts.
Monitor the market and social media for dupes, and assess
options with the Iconix post-sale confusion framework in mind.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.