Post-sale confusion: a doctrine in development

Post-sale confusion occurs when confusion occurs after the trade mark owner’s goods have been purchased. The status of such confusion under European Union trade mark law is unclear, with conflicting case law of the Court of Justice of the European Union (CJEU).The UK courts have acknowledged the possibility of actionable post-sale confusion. However, in the past year, post-sale confusion has gained a higher profile, with its acceptance in two Court of Appeal decisions.The doctrine is controversial. In certain forms of post-sale confusion, while consumers may be confused, it is difficult to detect harm to the trade mark owner. It is questionable whether the law should step in in such cases. This article reviews the forms of post-sale confusion and the types of harm involved against the backdrop of the pending appeal to the Supreme Court in Iconix. It also argues that Brexit has enabled the UK courts to resolve ambiguities against the background of uncertain CJEU jurisprudence.