Post-sale confusion and Iconix: a case of mistaken identity

Post-sale confusion and Iconix: a case of mistaken identity

Journal article

1 online resource (pp. 251–263)

2045-9807 (Print)
2045-9815 (Online)

The doctrine of post-sale confusion is one that has seemingly transfixed trade mark lawyers of late. But this makes sense to me, as it goes to the dramatic heart of trade mark law. It is a story of the occasionally heroic conceptual integrity of the trade mark, to the foil of the consumer, and to the dramatic irony of its production through consumption. Post-sale confusion is trade mark law’s own docudrama of mistaken identity. Post-sale confusion means being concerned not only with the issue of imperfect recollection but also with the action of perception and the ‘perfect’ completion of a mark through what we presume and expect to see. What might this mean for confusion? The drama of post-sale confusion reached something of a resolution when the Supreme Court handed down its decision in Iconix v Dream Pairs. What might the imperfection of perception imposed by the felicitations of perspective in use mean for trade mark confusion? Over two days in March, the court heard arguments on the mobility of the mark in action and in use. In its judgment of 24 June 2025, the Supreme Court elaborated upon the doctrine of post-sale confusion, firmly establishing that ‘realistic and representative circumstances’3 arising post-sale can be taken into account when assessing whether two marks are similar or dissimilar under the law of the United Kingdom.

Queen Mary Journal of Intellectual Property ; Volume 15, Issue 3

[Northampton, England] : Edward Elgar Publishing Ltd., 2025.

English

https://www.elgaronline.com/page/Conditions%20of%20use/terms-and-conditions

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