With INTA's Annual Meeting in London this May and thousands of trade mark attorneys about to descend on the city, here is a quick tour of developments since last INTA (May 2025) that visitors may find surprising or even a bit eccentric. 

The past year has seen the UK IP courts begin to grapple with the novel challenges posed by AI-generated outputs, set limits on the exhaustion of rights principle and consider when they can enforce foreign infringement damages awards. It also demonstrated the increasing gap between UK and EU law, particularly when it comes to advertising regulation and saw a 30-year Irish trade mark dispute finally reach its likely conclusion.

For brand owners and practitioners operating across both the UK and EU markets, these developments carry real practical implications.

Summary of developments

• Tainted damages: Enforcing US multiple damages awards in UK courts?
• First successful UK IP claim against AI was for trade mark infringement (not copyright infringement)
• UK advertising regulator increasingly using AI to monitor online advertising
• Double trouble: Comparing the relevant assessment date for validity of Brexit comparable trade marks
• After the divorce: UK divergence from EU IP and advertising law post-Brexit
• From before the marriage: Longstanding Irish trade mark law disputes decided under pre-harmonisation rules
• When can the badge stay on? Aftermarket modifications and exhaustion of rights
• Trade mark lookalikes: The Court of Appeal's unfair advantage finding in Thatchers v Aldi stands (no appeal to the Supreme Court)
• Misleading 'milk' designation: Supreme Court invalidates Oatly's POST MILK GENERATION trade mark

Skip to practical takeaways

Tainted damages: Enforcing US multiple damages awards in UK courts?

It's a long-established principle that UK courts only award compensatory damages, sometimes regrettably so in IP cases. Less well known is the rule preventing UK courts from enforcing any overseas judgment for ‘multiple damages’. This essentially means any award calculated by doubling, trebling or otherwise multiplying a compensatory sum (section 5 of the Protection of Trading Interests Act 1980).

Although about trade secrets, Motorola v Hytera [2025] EWCA Civ 1667 has clear brands implications. Motorola tried for UK enforcement of just the non-multiple part of its US Defend Trade Secrets Act damages award. The Court of Appeal said no. It did so because the award did not solely consist of compensatory damages, section 5 blocked enforcement of any part of it. The judgment also confirms that section 5 bites even when multiple damages are discretionary rather than mandatory.

The UK courts would likely take a similar approach to any award including state law punitive damages for trade mark infringement, often calculated at up to three times the compensatory amount.

First successful IP claim against an AI in the UK court was for trade mark infringement (not copyright infringement)

In Getty Images (US) Inc & Ors v Stability AI Limited [2025] EWHC 2863 (Ch) the much cut down copyright infringement claim was unsuccessful in the High Court but infringement of Getty's trade marks was established. The trade mark claim was about Getty's watermark which had appeared on images outputted by the AI due to memorisation and watermarked images not having been filtered out from earlier versions of Stable Diffusion, as they were from later versions.

The case confirms that AI-generated outputs can infringe trade marks even where there is no human intention to use the infringing mark. It is the output of the model, not the instruction of the user, that results in infringing use.

The trial judge granted Getty leave to appeal on its remaining copyright claim (which is pending) but refused Stability AI's cross appeal against the trade mark infringement finding.

UK advertising regulator increasingly using AI to monitor online advertising

Speaking of AI, UK regulators are making increasing use of it. In February 2026 alone, the UK Advertising Standards Authority (ASA) made six rulings against online ads for weight loss jabs promoting prescription-only medicines to the public, which is prohibited in the UK. All had been flagged by the ASA's AI Active Ad Monitoring System rather than a consumer or competitor.

Double trouble: Clarifying the relevant assessment date for validity of Brexit comparable trade marks

It is now over five years since EU trade mark owners awoke to find a shiny new ‘comparable’ trade mark on the UK IPO's register. Also, the owner of an EU application which was pending on 31 December 2020 could apply for an identical UK mark. But the UK IPO's Hearing Officers have struggled to figure out just how comparable these marks really are, a task made harder by ambiguities introduced into the Trade Marks Act 1994 by Brexit legislation.

A curious 2026 appeal from the UK IPO to the court, involving an attempt to register TESLA for car accessories has clarified one aspect. When assessing the validity of a comparable UK application (including bad faith challenges, as here), the relevant date for the assessment is that of the original EU application. A handful of earlier Hearing Officer decisions had suggested it was the UK application date. This conclusion follows from the Withdrawal Agreement, which the UK courts must apply directly notwithstanding inconsistencies in the legislation elsewhere.

The case was remitted for the bad faith challenge to be assessed at the right date.

After the divorce: UK divergence from EU IP and advertising law post-Brexit

After decades of harmonisation with EU IP law, the UK courts have started going their own way. Back in 2023, the UK Court of Appeal departed from CJEU guidance on statutory acquiescence. It held that the five-year clock runs from the date the claimant becomes aware of the defendant's use of the allegedly infringing mark. The CJEU's Budvar decision required awareness of both use and registration.

But more recently, EU law incompatibility arguments have failed to disrupt the UK's models for inexpensive IP justice. In Makeality Ltd v City Doggo Ltd [2025] EWCA Civ 400 a trade mark owner argued that the restricted cost recovery rules in the small claims track of the Intellectual Property and Enterprise Court did not comply with the EU IP Enforcement Directive as interpreted by EU caselaw. The Court of Appeal was unimpressed, noting that the Retained EU Law (Revocation and Reform) Act 2023 now completely blocks arguments based on the direct effect of EU law. Had the challenge succeeded, the objectives of the small claims track (and potentially IPEC's broader costs regime) could have been thwarted.

This UK v EU divergence is also being felt in advertising and unfair commercial practices regulation. The EU Omnibus Directive 2019 and the UK's Digital Markets, Competition and Consumers Act 2024 mean that whilst the underlying principles remain familiar, practical application has diverged on both sides of the channel.

From before the marriage: Longstanding Irish trade mark law dispute decided under pre-harmonisation rules

Irish trade mark law remains governed by EU harmonisation and has been since Ireland implemented the original EU Trade Marks Directive in December 1996. It may therefore come as a surprise that the likely final chapter in a 30-year dispute, decided by the Irish Court of Appeal at the end of 2025, turned on Ireland's pre-harmonisation Trade Marks Act 1963. This was because the rival trade mark applications for DIESEL (for jeans) were filed in 1992 and 1994.

The earlier application was made by Montex, an Irish company whose predecessor had manufactured jeans under the DIESEL mark since 1979. The later application was made by the Italian jeans giant Diesel SpA, which had sold DIESEL jeans in Ireland from only 1982 (although it had sold elsewhere in Europe since 1978).

The Irish Supreme Court had already refused Montex's application in 2001, finding use of the mark would be likely to cause confusion. In 2025, the Court of Appeal refused Diesel SpA's application on the same grounds.

The High Court had held that confusion caused by an opponent's own wrongful conduct, namely Montex's alleged copying of Diesel's mark, could not prevent registration. The Court of Appeal disagreed. Having accepted that confusion of the Irish public would result from use of the mark, it was not open to the trial judge to allow registration on the basis that it was Montex's conduct that had caused that confusion, blameworthy or not.

Had the applications been made following harmonisation the result may not have been this unusual trade mark no score draw.

When can the badge stay on? Aftermarket modifications and exhaustion 

Upscaling is becoming a global phenomenon, but do marked modified goods sold on the aftermarket infringe? That was the subject of the appeal in AGA Rangemaster Group Ltd v UK Innovations Group Ltd [2025] EWCA Civ 1622. UK Innovations buys old AGA range cookers running on fossil fuels, converts them to electricity and resells them with their AGA badges intact.  UK Innovations said AGA's trade mark rights were exhausted when the cookers were first put on the market. However, the UK's exhaustion provision (inherited from an EU Directive) carves out ‘legitimate reasons’ to oppose further dealings, including where the goods' condition has been changed, where dealings might seriously damage the mark's reputation, or where they give the impression of a commercial connection with the trade mark proprietor.

Mere refurbishment, even with non-OEM parts, did not negate exhaustion. However, the conversion to electricity was a significant change in the goods' condition. Nevertheless, because these were expensive items and consumers would, at the point of purchase, know the eControl conversion was independent of AGA, the Judge found the balance just tipped in favour of the aftermarket.

UK Innovations' marketing materials were a different matter. They infringed because they were likely to give consumers the impression that eControl AGA cookers were part of AGA's own range. The Court of Appeal affirmed the Judge's conclusions on all trade mark points appealed, though it criticised some of his reasoning. The finding of no infringement in respect of the badged converted cookers may be surprising to some, but the Court of Appeal found it supportable on the evidence given the Judge had recognised it was finely balanced.

Trade mark lookalikes: The Court of Appeal's unfair advantage finding in Thatchers v Aldi stands (no appeal to the Supreme Court)

The UK has no general law of unfair competition, so those objecting to own brand lookalikes must rely on passing off or registered trade marks for labels or packaging. In practice, passing off rarely works in the UK in these cases. At the very beginning of 2025, the big brand news was Thatcher's trade mark success in the Court of Appeal against what it claimed to be an Aldi lookalike. The High Court held that Aldi hadn't passed off or infringed Thatcher's registered trade marks for its labels, but the Court of Appeal reversed the no infringement finding on the basis of unfair advantage taking.

Aldi sought permission to appeal to the Supreme Court on the grounds that the Court of Appeal had erroneously created a new wrong of ‘merely copying’. In June 2025, permission to appeal was refused by the Supreme Court as Aldi's application did not "raise an arguable point of law".

Misleading 'milk' designation: Supreme Court invalidates Oatly's POST MILK GENERATION trade mark

Until recently it was rare for trade mark cases to reach the UK's Supreme Court, let alone one at the intersection of trade mark law and food regulation. But Dairy UK Ltd v Oatly AB [2026] UKSC 4 was just that. It concerned Oatly's trade mark for its slogan 'POST MILK GENERATION' registered for oat-based food and drinks. Dairy UK challenged the mark's validity on the basis that its use was prohibited by law (section 3(4) of the Trade Marks Act).

Regulation 1308/2013 provides that the designation "milk" may not be used for products other than those it specifically covers - which does not include oat-based drinks. The Supreme Court rejected Oatly's argument that "designation" only applied to product names and that an exemption applied. The mark was found invalid. 

Talking of food and drink brands, those recently in the UK may be wondering where all the sweet treat and pop ads have gone. In 2026, advertising restrictions on foods categorised as high fat, salt or sugar (deemed ‘less healthy foods’) came into force, meaning no ‘junk food’ ads between 5am and 9pm on TV and in paid-for space online at any time.

Practical takeaways for international brand owners 

The developments covered above reflect a trade mark and advertising landscape that is becoming more complex on both sides of the Irish Sea. A few themes stand out from a practical perspective.

1. Post-Brexit divergence is increasing 

The gap between UK and EU trade mark and advertising law is already growing. Businesses and practitioners managing pan-European brands need to treat UK and EU compliance and enforcement as genuinely distinct exercises. The assumption that UK law tracks EU developments is no longer safe.

2. Comparable UK trade marks may carry hidden complexity

The clarification in the TESLA case, that validity challenges to comparable UK marks are assessed at the date of the original EU application, is welcome. However, the need for this decision is a reminder that these marks may not always be treated as fully identical to their EU counterparts. 

3. Exhaustion and the aftermarket

Although the principle of exhaustion of rights has been retained by the UK, the AGA Rangemaster decision demonstrates its application may not be easy to predict. This decision does not give aftermarket operators an entirely free hand. Brand owners facing aftermarket modification of their goods should assess the marketing materials used to promote them as well as the modified goods themselves before deciding what approach to take.

If you would like to discuss any of these developments and what they mean for your brand portfolio, please do get in touch with our award-winning and highly ranked UK and Irish IP teams. 

If you are heading to INTA London this May, we hope you find these highlights interesting or entertaining. Our representatives are drawn from across our offices in London, Birmingham, Manchester and Dublin and very much look forward to seeing you.