Happy New Genericide case
Dryrobe v D-Robe: The Dispute Unwrapped
As has become customary, I begin the new year with an IP piece. The festive season never fails to deliver a tantalising trademark dispute, and in December ’25 the English High Court handed down judgment in Dryrobe Limited v Caesr Group (trading as D-Robe Outdoors). The case involved a relatively uncommon phenomena known as “trademark genericide” which occurs when a brand name becomes synonymous with a product with the effect that the name can no longer function as a trademark. (I say uncommon, but Christmas ’24 saw the demise of various “superhero” marks held jointly by Marvel and DC as a result of precisely this issue).
The Claimant was the producer of the ubiquitous Dryrobe – the first of its kind in the UK market when it launched back in 2011. Its creator was famously influenced by a garment cobbled together by his mother comprising a toweling cape covered in tent material. Nowadays it serves as the uniform of cold-water swimmers, surfers and even the odd parent on the school run. Undoubtedly popular, the product has also attracted some derision (in common with most things which gain widespread popularity!). It has even generated its own derogatory term (IYKYK!)
Dryrobe took legal action against the makers of D-Robe changing robes, alleging trademark infringement and passing off. The D-Robe team counterclaimed, alleging invalidity of the Dryrobe marks, and seeking their revocation as a fall-back position. The key issue for determination by the Court was whether the Dryrobe mark had fallen into the same category as the likes of jacuzzi, frisbee and trampoline. (When did you last enjoy a whirlpool bath, throw a flying disc or bounce on a rebound tumbler?!)
Whilst the judge accepted that the term Dryrobe had become descriptive, he ultimately determined that the marks had retained the key function of distinguishing the goods of one undertaking from those of another. The counterclaim for revocation failed and the claimant prevailed.
Takeaways for brand owners
The Claimant’s infringement claim was supported by clear evidence of actual confusion on the part of the public – gold dust in cases of this nature. Brand owners should be careful to retain emails and document calls from customers demonstrating such confusion. In the Dryrobe case there were several emails from purchasers of the rival D-Robe who clearly believed they had bought a product produced by Dryrobe.
Businesses should also take note of the huge value in taking active steps to protect their IP. The court in the Dryrobe case heard evidence of the strategy adopted by the claimant (on the basis of what proved to be sound legal advice) to avoid dilution of his brand. This included a social media campaign designed to educate the public on the fact that only their product could properly be called a Dryrobe, a policy of contacting anyone incorrectly using the term online to request that they correct their post, use of online brand enforcement, and ultimately taking legal action where necessary.
The IP team at Davidson McDonnell regularly advise both brand owners and those facing allegations of infringement. Get in touch if your New Year’s resolution is to protect your brand!
Written By: Kirsten Magee
Kirsten Magee,
Legal Director Commercial Litigation
Email: kirsten.magee@davidsonmcdonnell.com
Direct Dial: 028 9099 1087