On 24 June 2025, the Supreme Court handed down its decision in the case of Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc and another (see here).

Whilst Dream Pairs was ultimately successful in overturning the Court of Appeal decision, the decision confirmed that post sale confusion, where a third party is confused after the sale of a product (e.g. seeing the logo on a clothing item on a person in the street), is relevant to the assessment of confusion in UK trade mark infringement matters.

Background

By way of background, Iconix is the owner of well-known sportswear brand, Umbro. Since 2018, Dream Pairs have been selling footwear online using a logo which Iconix claims to infringe its ‘double diamond’ trade mark (see logos below).

Iconix Registered Trade Marks	Dream Pairs Mark

The High Court dismissed Iconix’s claim in the first instance, citing a low degree of similarity and no likelihood of confusion. This led to an appeal by Iconix which found that the High Court’s decision was “irrational”. The Court of Appeal focused its decision on the moderate level of similarity arising in a post-sale context, for example when each of the signs were seen on football boots worn in a public setting. The Court of Appeal also found a likelihood of confusion on the part of a significant proportion of consumers. Dream Pairs appealed the decision to the Supreme Court.

The Supreme Court’s Decision

The Supreme Court’s key findings in today’s decision are as follows:

• The average consumer for footwear is the UK adult population generally, not actual purchasers of the goods in question.
• Mere association, in the sense that the later mark brings the earlier mark to mind, is not sufficient.
• The sign must be considered in a realistic and representative post-sale context, which in this case is seeing the mark from head height on footwear being worn by another person.
• Perception in post-sale environment is part of the overall impression made by the signs to the relevant public. Damages at the point of sale of influencing consumer at the point of choosing/purchasing the goods are not required for an actionable infringement.

However, the Supreme Court allowed the appeal even though the main point of law were rejected, as the High Court, in making its initial decision, did not make an irrationality or error of principle or of law which justified the Court of Appeal in overturning the initial decision.

This case is significant for IP practitioners and brands alike, as it sets a precedent for reliance on the doctrine of post-sale confusion in trade mark infringement cases. This decision will be of particular interest to brands plagued by ‘look-a-like’ products causing consumer confusion and taking unfair advantage of well-known marks.