Post-sale confusion – what is it, and what does it mean for your business?

The influential Supreme Court decision in the UK in Iconix v Dream Pairs [2025] UKSC 25 has shaken up trade mark law significantly.

Without dissecting the case in detail, the Supreme Court affirmed that post-sale confusion is a basis for trade mark infringement in the UK. This came after a long battle and disagreement between the lower courts in these proceedings.

What is post-sale confusion?

As defined by Justice Arnold in the landmark Datacard case (Datacard Corporation v Eagle Technologies Ltd [2011] EWHC 244 (Ch)) it is “confusion on the part of the public as to the trade origin of goods or services in relation to which the impugned sign has been used which only arises after the goods or services have been purchased”. The Supreme Court in Iconix clarified that such realistic and representative post-sale circumstances can now be considered when assessing trade mark infringement.

What does this actually mean in practice?

This concept can be understood when a person is purchasing goods and is fully aware of their origin, however, where other members of the public may be misled about the origin of the goods or services. Let’s take the Umbro sign and Dream Pairs (see below) trade mark as an example – the issue at hand is that if I buy a pair of football boots from Dream Pairs with their sign is on it, and during a football game members of the public perceive the boots as those made by Umbro, then it can be considered as post-sale confusion. The confusion experienced by the public (not the purchaser of the goods) can constitute grounds for trade mark infringement under section 10(2)(b) of the Trade Marks Act 1994.

Umbro trade mark  Dream Pairs sign

Why should it concern your business?

The Supreme Court’s decision is a significant victory for brand owners, as it broadens trade mark protection scope. This can help facilitate the assertion of trade mark rights and successfully prove infringement by competitors. This has implications beyond litigation, as it will likely affect invalidity proceedings and trade mark oppositions as real world use and post-sale confusion can affect proceedings before the UK Intellectual Property Office.

Limitations

Post-sale confusion has its limitations, as the circumstances must be “realistic and representative”. This means that the courts or the UKIPO will not consider flagrant or far-reaching claims. The evidence must be genuine and not a hypothetical possibility. If you suspect that your business or brand could be affected by post-sale confusion, evidence is crucial (such as via social media, online reviews or other means).

Strategic considerations moving forward

The Iconix decision demonstrates how trade mark protection goes beyond point of sale and shows how consumers interact with brands in real-world scenarios. Brand and business owners should pay particular attention to this principle when designing new logos, signs or brand identifiers. They must consider their competitors and how the public might perceive their brand.

Whether you are a start-up or well-established brand and think that your brand may be affected by post-sale confusion, or you wish to future proof yourself from such legal risks, please feel free to get in touch. Our IP experts are here to help!