Post Sale Confusion – dupes and lookalikes beware?

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

1. Audit packaging for distinctive, recognizable elements and seek registrations accordingly.
2. Gather evidence of real-world use, especially online and in social contexts.
3. Monitor the market and social media for dupes, and assess options with the Iconix post-sale confusion framework in mind.

This article was prepared by Trade Mark Director Sean McDonagh