What trade mark and designs issues should brands look out for in Europe in 2026?

This year will be another exciting one for intellectual property, with a number of prominent issues likely to be on the agenda for brands.

It has now been five years since the end of the Brexit transition period, which may prompt an increase in non-use trade mark challenges. Beyond this, bad faith will continue to be prominent in the trade mark context, following the UK Supreme Court's decision in Sky v SkyKick. Post-sale confusion may also take a greater role, with the potential for trade mark infringement claims based on that alone.

Sweeping reforms to design law are being considered in the UK, including the potential introduction of a bad faith provision and simplification of the design regime post-Brexit. Design law reform will also continue in the EU, with a number of substantive provisions in the new designs regulation taking effect this year.
 

Standard of appeal in UK courts

In 2025, the Supreme Court reminded appeal courts of the standard of appeal that must be met when overturning decisions concerning multifactorial assessments. Overturning such decisions is limited to certain circumstances, for example, if the judge was plainly wrong or there was a significant error of principle.

That decision, in Iconix v Dream Pairs, originated in the trade mark context and the Supreme Court's judgment has been cited in appeals concerning multifactorial assessments in subsequent trade mark and patents decisions.

Although the Supreme Court's decision was a reminder of existing principles, it is likely that appeal courts will be less interventionist in relation to multifactorial assessments and will only carry out a reassessment when there has been an error of principle or the judge was plainly wrong. Nonetheless, even if a reassessment is carried out, it may not result in a different outcome, as was the case recently in Babek v Iceland.

Trade marks

Non-use challenges

From 1 January 2026, owners  of UK trade marks "cloned" from EU trade marks post-Brexit will not be able to rely on use in the EU as genuine use in UK proceedings. This may leave marks vulnerable to challenge by third parties under section 46(1) of the Trade Marks Act 1994 where the owner cannot prove genuine use in the UK. Consequently, this year may see an increase in non-use challenges and could potentially see new applicants seeking to obtain UK trade mark rights in marks that are registered and in use in the EU but not the UK.

Rightsholders will need to be careful when considering re-filing a mark in the UK as this could open the re-filed mark to a bad faith "evergreening" challenge. This is where a repeat filing is made to avoid having to prove use after five years.

Bad faith 

Since the Supreme Court's judgment in Sky v SkyKick, there has been speculation as to how the decision would be applied in practice. Last year the decision was applied by the UK Intellectual Property Office (UKIPO) in opposition decisions, by the Appointed Person in an appeal against an opposition decision and by the Intellectual Property Enterprise Court (IPEC). It also prompted the UKIPO to release statutory guidance updating its examination practice.

Bad faith will still very much be on the agenda in 2026 as the Supreme Court's decision continues to be applied. Broad and imprecise terms continue to be problematic. Brand owners should be cautious in registering broad specifications where there is no intention to use, and they should be prepared to sufficiently justify their filing strategies if bad faith claims are made. The importance of a satisfactory filing explanation is heightened post-SkyKick.

There are still unanswered questions that will need to be addressed as the UKIPO and the courts continue to apply SkyKick, for example, will "repeat offenders" be punished in some way for continued bad faith filings? As noted above, will there be an increase in evergreening filings to avoid non-use challenges and will this result in increased bad faith challenges?

Post-sale confusion 

Last year, the Supreme Court confirmed the relevance of post-sale confusion for trade mark infringement, finding that realistic post-sale circumstances can be considered when assessing similarity and likelihood of confusion. Indeed, it confirmed that post-sale confusion alone (without confusion at the point of sale) can form the basis of a trade mark infringement claim.

While the decision was helpful for brand owners, they will need to remember that, from a practical perspective, when creating a new logo, for example, they will need to factor in post-sale contexts to ensure they do not infringe similar logos. This will be particularly relevant to 2D marks, which can be distorted when viewed at different angles on goods being worn or used (for example, logos on trainers or boots, or device marks on handbags and clothing), whereas for more conventional word marks or packaging logos angle‑based distortion is unlikely to be a major consideration in most cases.

It is possible that there will be an increase in brand owners challenging lookalike products relying on post-sale confusion, where similarities in logos or quasi-decorative elements may be more likely to give rise to confusion when they are less clearly associated with different brand names or other elements in a retail context. This could particularly be the case in industries where logos are less static when the product is in use, for example, in the fashion industry.

However, only "realistic and representative" circumstances may be taken into account, so brand owners will need to think carefully about how a competing mark is perceived in the real world, such as when a product is being worn, in order to rely on post-sale confusion and to potentially increase their scope of protection.

UKIPO fee increases

Subject to Parliamentary approval, the UKIPO's fees will be increasing for trade marks (designs and patents) from 1 April 2026. There is set to be a 25% increase in fees. For example, a trade mark application will go from £170 to £205. The UKIPO will publish full guidance early this year.

Supreme Court decision – Dairy UK v Oatly

The UK Supreme Court is considering when certain terms, such as "milk", can be used on products and the interplay of the regulation of the use of those terms with trade mark law. The Court of Appeal held that Oatly's registration of "Post milk generation" as a trade mark to be used on t-shirts and oat-based products was a designation that was prohibited under assimilated law.

The Supreme Court hearing took place on 10 December 2025 and the court is likely to issue its decision during the course of 2026. Depending on the outcome, the use of regulated terms for non-descriptive plant-based branding may become more restrictive. It could also result in UK-EU divergence on the issue.

This is in keeping with similar discussions taking place in the EU, following a proposal by the European Commission to reserve certain "meat" names for product exclusively derived from those meats at all stages of marketing. Talks between the European Parliament and the Council fell apart on 10 December 2025. Negotiations are scheduled to continue this year, but there are diverging views on the issue across Member States.

Designs

Design law reform

In the EU, design law reform continues. The new EU designs regulation took effect from 1 May 2025, but a number of the substantive provisions will not apply until 1 July 2026, including the new design representation regime.

The new regime will make it easier to obtain design protection for designs in non-physical products. For example, designs will be able to be represented in digital formats, rather than being limited to static images. It is anticipated that these changes will lead to an increase in the number and kinds of designs registered at EU level.

While digital filing will also be permitted for national Member State registered designs, Member States will have until 9 December 2027 to transpose the new directive into national law, so a change to filing practices at the national level will be slower.

In the UK, the UKIPO finally published its long-promised sweeping design law consultation, which could indicate that an overhaul of UK design law is on the cards. The consultation touches on everything from search and examination, bad faith, and observation and opposition in design registration to deferment proposals, computer-generated designs, simplification of unregistered designs and other post-Brexit issues relating to unregistered designs. 

The consultation closed at the end of last year and, although the government indicated some preferred reform options (for example, abolishing protection for computer-generated designs), the main purpose of the consultation was to solicit feedback on the numerous reform options proposed.

The government has indicated that the feedback it receives will help shape its next steps and what policy or legislative reform it decides to pursue (if any). This probably means that any reform may be some way off, particularly if it is legislative in nature. However, we might expect a response from the government at some point during 2026 (although no timeframe has yet been indicated).

Works of applied art: the copyright/designs interface

In 2024 in the WaterRower case, the IPEC concluded that the EU and UK tests for copyright subsistence for works of applied art could not be reconciled. Following this, the UKIPO's design law consultation covered the design/copyright interface for works of applied art.

The consultation set out the government's preferred position not to change the UK's closed list legislative approach, which provides copyright protection for "works of artistic craftsmanship". However, the consultation also seeks views on other options, including amending the legislation to remove works of artistic craftsmanship from copyright protection, providing a definition of works of artistic craftsmanship or providing a new definition of originality for design articles.

EU/UK divergence continued?

There has started to be some IP case law divergence in the UK post-Brexit, but this trend could continue in 2026. The Retained EU Law (Revocation and Reform) Act 2023 abolished the supremacy of EU law and it is possible that there will be more divergence once cases concerning facts after the end of 2023 start to make their way through the courts.

As noted above, the IPEC concluded that the EU and UK tests for copyright subsistence for works of applied art could not be reconciled in WaterRower. However, that decision concerned matters occurring before the end of 2023, so the judge still had a strong duty to interpret UK law in line with Court of Justice of the EU case law on the protection of applied art. 

For matters occurring after the end of 2023, the principle of supremacy of EU law no longer applies, which should mean that the UK courts are even less likely to conclude that the interpretation of the artistic craftsmanship category under UK law should be stretched to cover works of applied art that might not fall within the natural meaning of those words.

Osborne Clarke comment

Brands should anticipate an active 2026 for trade marks and designs. Five years on from the end of the Brexit transition period, non-use challenges to “cloned” UK marks are likely to increase as EU use can no longer evidence UK use. Attempts at re-filing marks to avoid non-use issues may risk bad faith “evergreening” attacks.

The Supreme Court’s confirmation that post-sale confusion alone can ground trade mark infringement claims may embolden actions against lookalike products, particularly in dynamic use environments such as fashion.

On designs, the EU’s new regime will begin to bite this year, easing protection for non-physical and digital designs and likely broadening the filing landscape. The UK’s consultation signals potentially far-reaching reform – from a potential bad faith provision to streamlined registration and possible unregistered rights updates – raising the prospect of UK-EU divergence.

This year in particular, brands should ensure that they put in place careful filing strategies, gather and retain appropriate evidence of use as required, and be alive to changing litigation tactics.