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Brand Matters

Issue 39: February 2026

Brand Matters

Editor's note

Sally Britton
Sally Britton, Partner

Welcome to our first edition of Brand Matters for 2026. 2026 promises to be an exciting year for brand owners and their advisers as we welcome the International Trademark Association to London in May for its Annual Meeting.  Mishcon is delighted to be a Local Host firm, and we are looking forward to connecting with friends and colleagues and showcasing our fantastic city.  If you'd like to explore food and drink options in the INTA London hubs, check out our Guide to Entertaining which contains personal recommendations from our team.  

It has already been a busy start to the year, and this edition brings together a range of significant developments from the courts and regulators. We cover a broad sweep of topics: from the Supreme Court's ruling that Oatly's "POST MILK GENERATION" trade mark is invalid, to DRYROBE's success in defending its trade mark against allegations of genericism through a proactive and well-documented brand protection campaign. We also report on recent ASA decisions concerning greenwashing in fashion advertising, developments in EU design and copyright law, and changes to remuneration and equity incentives relevant to brands.

We will be exploring many of these topics at our annual Brand Matters Live in-person event on 19 March, and we very much hope you will be able to join us for what promises to be an engaging evening of discussion and practical insight.

I hope you find this edition both useful and interesting. If you have any questions on the topics covered, please do drop me or any of our contributors a line.  

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colourful clothes on rack

Retail Horizon Scan: Upcoming legal developments in 2026

We were delighted to host a Retail horizon scanning webinar in January covering significant upcoming changes to employment law, IP protection and enforcement, and consumer law and advertising. Click here to access the recording of the event.

News
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Fashion trends in EU design law: the CJEU's judgment in Deity Shoes

The Court of Justice of the European Union has clarified the requirements for design right protection under EU law, following some uncertainties around the interpretation of the EU Design Regulation, in particular as to the impact of fashion trends on design protection.

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DRYROBE v D-Robe: Avoiding genericism in a brand name

The owner of the DRYROBE trade mark has countered arguments of genericism by showing that it had implemented a robust campaign to maintain distinctiveness, including correcting generic use by consumers and third parties through a range of techniques such as social media campaigns.

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Person shopping in supermarket

UK advertising rules on "less healthy" foods enter into force

New advertising restrictions on "less healthy" foods are now in force. They impose a 9pm watershed for advertising less healthy food and drink products on TV and a complete ban on paid-for online advertising of such products, aimed at tackling childhood obesity.

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Athleta partially successful in trade mark infringement appeal but Sports Group Denmark can continue to use 'Athlecia'

US athleisure brand Athleta has partially succeeded in overturning a High Court decision rejecting part of its trade mark infringement claim and passing off by the defendant's use of a logo in relation to its Athlecia brand.  However, the Court of Appeal rejected Athleta's appeal in relation to the defendant's use of the word 'Athlecia' itself, meaning it can continue to use the 'Athlecia' brand name.

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Avoiding trade mark infringement in the aftermarket: lessons from the AGA case

In this case concerning renovated and converted AGA cookers, the Court of Appeal has upheld a finding that UK Innovations Group Ltd had infringed AGA's trade marks, specifically through the way in which it marketed and sold refurbished AGA cookers (as opposed to the acts of refurbishment themselves).

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Have the copyright tables turned? Contextualising the issues in Mio/Konektra

The Court of Justice of the European Union has provided important clarification on copyright protection for works of applied art in the EU in joined cases Mio and Konektra, including a useful summary of EU copyright law and the assessment of the 'originality' requirement. However, the decision also introduces new, potentially significant, elements to the framework.

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Artificial Intelligent

Government publishes progress report on copyright and AI

The Government has published its progress report on copyright and AI, ahead of a final report due to be published in March 2026. Unsurprisingly, the responses to its consultation demonstrate a lack of support from respondents for a new exception allowing copyright works to be scraped unless they are opted out.

JazzShaper
a person holding a card

Jazz Shaper: Louise Hill

Louise Hill, financial education campaigner, is  Founder of GoHenry – the money app helping kids learn to earn, save, spend and invest. Louise has built the business from the ground up, from launching GoHenry in the UK in 2012 through later expansions, acquisitions and mergers.  

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