Post-sale confusion in trade mark infringement cases has been endorsed for the first time by the UK's highest court.
This means that a claim can be won on the basis of confusion on the part of people who do not buy the goods bearing the infringing mark, but who, for example, merely see them being worn by others.
In setting a relatively low bar for the nature of post-sale confusion – for example, it can be caused by only seeing the allegedly infringing sign from a particular angle – the Supreme Court may have also re-opened the door to "initial interest" (i.e. pre-sale) confusion.
However, the bar has been raised for appellate courts to overturn a trial judge's factual findings – such as on the similarity of two marks and the likelihood of confusion between them.