The Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc decision offers guidance for fashion and lifestyle brands navigating trade mark infringement.

The UK Supreme Court has delivered a ruling that brand owners should note. In Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc [2025] UKSC 25 the Court considered whether trade mark infringement can be established based on post-sale confusion, even if there is no confusion at the point of sale.

The Dispute
Iconix, owner of the Umbro sportswear brand and its registered double-diamond logo (which it has used on football boots since 1987), took issue with Dream Pairs, a footwear company selling shoes bearing a “DP” logo formed by two overlapping diamonds.

Iconix alleged that the average consumer seeing these shoes on the street might mistake them for Umbro products, particularly when the shoe was being worn and seen from above, even if buyers online had not been confused at checkout. Dream Pairs argued that any similarity should be assessed only at the point of sale, and only by comparing the marks side by side. After three rounds of litigation, the Supreme Court ultimately reinstated the High Court’s finding in favour of Dream Pairs, concluding there was no meaningful similarity between the marks and thus no likelihood of confusion. Crucially, however, the Court confirmed that post-sale circumstances within which brands are perceived, are relevant when assessing the similarity between marks and the potential for consumer confusion.

Post-Sale Confusion Explained

Post-sale confusion occurs when a casual observer - not the buyer - mistakes one product for another after purchase. Think of someone spotting a pair of trainers or a handbag on the street and assuming it’s a luxury brand when it isn’t. The Court reaffirmed that trade marks continue to function as badges of origin even after the products are sold. Your brand’s reputation can be damaged when the public mistakes inferior products for yours, even if those people never intended to buy your products.

Still, the Court emphasised that each case turns on evidence and context: how the marks appear in use, the typical observer, and the trade channels involved. In this case, the Supreme Court held that the High Court judge had been entirely rational in concluding that the marks were not similar enough to cause confusion and that he had reached that conclusion by carefully examining evidence about how the marks looked, the type of buyer and the market channels. The Court of Appeal, so the Supreme Court opined, accordingly had no business substituting its own view.

The South African Perspective

South African trade mark law shares the same foundation: the unauthorized use of a similar mark that is likely to deceive or cause confusion will constitute an infringement. Our courts assess this through the lens of the average consumer in the marketplace, not through a side-by-side comparison. Proof of actual confusion is not needed, only proof of a reasonable likelihood of confusion.

As the South African Supreme Court of Appeal noted in Adidas AG and Another v Pepkor Retail Limited (187/12) [2013] ZASCA 3 (28 February 2013) the absence of evidence of confusion “is generally not significant”. While South African law does not expressly refer to “post-sale confusion”, the concept naturally fits within our broader test. Confusion may just as easily arise after a product is worn, used, or seen by others.

Likewise, the common-law action of passing off protects against any misrepresentation that causes members of the public, not just buyers, to think goods originate from another source. Local courts typically weigh: the nature of the goods and their market channels; the likely consumer and level of care; the way the marks appear in normal trade; the overall impression that the marks create when considered as a whole; and therefore, whether a substantial number of consumers would probably be deceived or confused. 

Why It Matters

The Iconix ruling underscores how trade marks operate in a world where products stay visible long after purchase. Brands live beyond the checkout page. Shoes, handbags, and even headphones are walking billboards, and misperceptions on the street can erode brand equity just as easily as confusion at the point of sale. Yet the case also serves as a reminder: post-sale confusion cannot be presumed simply because two logos share geometric shapes or colour palettes. An assessment must be rooted in how consumers actually perceive the marks in their real-world setting.

Key Takeaway for Brand Owners

Protection extends beyond the till. The fact that there is post-sale confusion is relevant, but infringement cannot be assumed merely because marks share similarities. Success in infringement cases still depends on proving a genuine likelihood of consumer confusion – speculation alone will not suffice.

Written by Merlene Engelbrecht at Spoor & Fisher