The IPEC judgement on 4 December 2025 in Dryrobe Ltd v Caesr Group Ltd t/a D-Robe Outdoors has provided rare insight into how to avoid the slippery slope of genericide, which legal professionals and brands can learn from to safeguard distinctiveness of trade marks.   

Background

Dryrobe isn’t just a brand – it has become somewhat of a cultural tide among lovers of outdoor sports, particularly post-COVID. As a result, on learning of D-Robe’s launch of its own changing robes, Dryrobe swiftly brought proceedings against it for trade mark infringement and passing off.                    

The genericide defence: sink or swim

D-Robe argued that Dryrobe had become the generic term for changing robes, invoking s46(1)(c) of the Trade Marks Act 1994. This finds that a previously distinctive trade mark may be revoked where it has become a generic name and so ceases to perform its function as an indicator of origin. 

While the court accepted that the DRYROBE trade marks were descriptive of some of the goods for which they were registered, Dryrobe had kept its head above water by proactively taking steps to police its marks, including:

• budgeting for legal and online brand protection;
• contacting third parties who were misusing “dryrobes” and “dry robes”;
• social media campaigns demonstrating Dryrobe’s superior quality;
• website guidance on use of ® when referring to Dryrobe; and
• a dedicated social media team searching for infringing uses. 

Trade mark infringement

The judge found there to be varying degrees of similarity between the DRYROBE trade marks and D-Robe’s signs. Given the identical goods, it was concluded that there was a likelihood of confusion and that D-Robe’s signs took unfair advantage of the distinctiveness of the DRYROBE marks. As a result, Dryrobe’s infringement and passing off proceedings succeeded. 

Takeaways for brand owners

• Robust and proactive brand enforcement is a life jacket for brands – consistent legal monitoring for infringing uses by third parties demonstrates an intention to encourage distinctiveness of trade marks, which is particularly important for those which are descriptive/semi-descriptive.
• Strategic brand education can prevent genericide – informing the relevant trade and public helps to ensure consistent use of marks and is critical in preventing genericide.
• Passing off remains key – where goodwill and reputation intertwine, passing off proceedings are key in challenging bad actors who don’t have a registered mark.