The Supreme Court has delivered its much anticipated judgment in Iconix v Dream Pairs, a saga that has been closely watched by brand owners and trade mark professionals alike. At the heart of the case were two pivotal issues in trade mark law: similarity and the likelihood of confusion. While the case didn’t directly concern “dupes,” the court’s reasoning offers valuable insights for brands navigating the increasingly complex landscape of lookalike products.

What are the key takeaways?

1. Real world context matters - How the average consumer perceives marks in everyday life (realistic and typical post-sale conditions) may be considered when assessing similarity of marks - it is not limited to a side-by-side comparison of the marks alone. 
2. Post-sale confusion counts - Even if purchasers know what they’re buying, confusion after the sale by the public (e.g. when the product is worn or seen) can give rise to infringement.
3. Confusion is enough “damage” – If an average consumer is confused about the origin of goods, no further damage (e.g. loss of sales etc.) needs to be shown to establish trade mark infringement. 

Why is this helpful for brands? 

In the battle against dupes and counterfeits, post-sale confusion has become increasingly important. Often, consumers knowingly purchase imitation products, making it almost impossible for brands to argue that the buyer was misled at the point of sale. However, confusion often arises after the purchase, particularly among third-party observers who may mistake a dupe for the genuine product. This is where the concept of post-sale confusion becomes especially valuable for brands.

Dupes frequently mimic the appearance of authentic products while generally offering inferior quality. When observers believe these imitations are the real thing, it can significantly damage a brand’s reputation, dilute its prestige, and erode consumer trust. Dupes unfairly benefit from the goodwill and recognition that established brands have built over time.

This issue is even more pronounced in today’s digital landscape, where products are widely shared on social media and promoted by influencers. The visibility of a product after purchase, especially when logos or distinctive designs are on display, can perpetuate false associations and mislead audiences. Being able to submit post-sale confusion in trade mark proceedings helps brands address this challenge.