In a closely-watched decision that will resonate across the branding world, the Intellectual Property Enterprise Court (“IPEC”) has found decisively for  Dryrobe Limited (“Dryrobe”) in its fight to protect its valuable trade mark, DRYROBE. [1] On 4 December 2025, Judge Melissa Clarke ruled that competitor, Caesr Group Ltd, trading as D-Robe Outdoors (“Caesr”), had infringed Dryrobe’s trade marks and  its actions amounted to passing off, despite arguments that the DRYROBE brand was descriptive and had also slipped into generic use. 

The Dispute: A Tale of Two Robes

Dryrobe, founded in 2013, “the biggest player in the ‘[UK changing robe] market” is best known for the Dryrobe: a waterproof changing robe with towelled lining designed for surfers and swimmers to change discreetly whilst staying warm and dry. The company owns various UK trade marks for DRYROBE, covering clothing, bags, hats, and accessories. 

In 2021, Caesr entered the market with its own version of the changing robe, marketed under the name D-ROBE. Its primary product is a waterproof changing robe similar to the Dryrobe product but less oversized in design, which its founder believed was more stylish and targeted more style-conscious consumers. However, Dryrobe claimed this was more than healthy competition, it was infringement under sections 10(2) and 10(3) of the Trade Marks Act 1994 (“TMA”) and passing off. In response, Caesr countered that DRYROBE was descriptive and had become generic and therefore Dryrobe’s trade marks should be revoked.  

A Descriptive Mark That Retained Distinctiveness

Judge Clarke found that whilst DRYROBE was not descriptive of bags, hats or beanies, she agreed the term was descriptive for changing robes and clothing. As she put it, "ROBE is a long loose garment or outer garment; DRY is an intended purpose of such a garment in both senses of 'to dry' the wearer and 'to keep dry' the wearer.” In plain terms, the name tells you what the product does. 

Acquired Distinctiveness Saves the Marks

Despite the descriptive nature of the marks, the judge was satisfied that there was “compelling evidence that a significant proportion of the general public as at the date of the counterclaim identified [Dryrobe’s] goods as originating from [Dryrobe] because of the Marks, and that the Marks had by that date acquired a medium level of distinctive character". The brand had built enough recognition that consumers understood DRYROBE as being goods emanating from Dryrobe, and therefore had acquired distinctiveness.

The evidence supporting acquired distinctiveness included:

• Caesr’s own admission that Dryrobe was the biggest player in the UK changing robe market in 2024;
• extensive and intensive use since at least 2019, with the prominent "Dryrobe®" logo on the back of products serving as a "walking billboard" wherever wearers went;
• extremely high-profile commercial relationships with Team GB and Red Bull plus appearances on TV programmes such as Top Gear and Comic Relief;
• very significant marketing and advertising spend that quadrupled from 2020 to 2021;
• widespread press coverage in national newspapers and magazines; and
• real-world examples of actual consumer confusion which the judge noted only made sense if people understood DRYROBE as a brand. 

Fighting the Slide into Genericism

Dryrobe hadn’t been passive about protecting its brand. The judge accepted evidence that since 2019 Dryrobe had pursued a determined campaign to protect the DRYROBE brand, including budgeting for legal work and online brand protection, actively writing to third parties using 'dryrobe' descriptively suggesting they use ‘changing robe’ instead as the generic category term, posting social media content explaining that DRYROBE is a registered trade mark, actively monitoring online mentions weekly, and investing in further legal action where appropriate.

The judge acknowledged that generic use had become significant by late 2024 but concluded that “a significant proportion of persons with the characteristics of the average consumer (being reasonably attentive members of the general public) recognised and understood DRYROBE as a brand name in December 2022". For this reason the judge found that DRYROBE had not crossed the line into becoming a generic term and was therefore not susceptible to revocation. The company’s vigilant brand protection efforts from 2019 had paid off and consequently Judge Clarke dismissed arguments for revocation under section 46(1)(c) TMA, finding that the marks had not become the common name in the trade for the products in question.

Trade Mark Infringement

The judge found the signs visually strikingly similar, both starting with “D,” ending with “ROBE,” and sharing five identical letters in sequence. She noted that consumers might view the hyphen in D-ROBE as replacing the missing “RY” from DRYROBE. Aurally, the marks shared the “ROBE” ending and the hard “d” sound at the start. Conceptually, the judge dismissed Caesr’s claim that its mark suggested “to derobe,” since “disrobe” is the more common term and concluded that consumers were more likely to see the “D” at the start as a stylistic element. Overall, the judge assessed the marks as having medium to high similarity.

Given the identical products and Dryrobe’s acquired distinctiveness, the judge found a clear likelihood of confusion under section 10(2) TMA. Judge Clarke noted that while consumers might notice the difference between “DRY” and “D-,” the overall visual and aural similarity, combined with Dryrobe’s reputation, made confusion highly probable. This was supported by substantial evidence of actual confusion:

• over 30 Caesr customers had contacted Dryrobe to return products, some admitting they thought they had bought a “dry robe”;
• one customer complained when a Caesr discount code failed on Dryrobe’s site;
• a Facebook user tagged #dryrobe while wearing a Caesr product and calling it a “dry robe make”; and
• instances of reverse confusion, with consumers contacting Caesr about Dryrobe products.

The judge concluded that section 10(2) infringement was established and dismissed Caesr’s claim that some confusion is acceptable for descriptive marks.

The judge also found infringement under section 10(3) TMA, concluding that Caesr had taken unfair advantage of Dryrobe’s reputation. By March 2022, Dryrobe had built a genuine reputation, and Caesr’s branding diluted DRYROBE’s distinctiveness and influenced consumer behaviour. Crucially, the confusion wasn’t just hypothetical but consumers were actually buying Caesr products believing they were Dryrobes, amounting to exploitation of Dryrobe’s marketing efforts without due cause. 

On passing off, the judge confirmed all three elements: Dryrobe had built sufficient goodwill through its distinctive marks; Caesr’s use of its sign amounted to misrepresentation; and consumer confusion caused actual damage. 

She also found that from at least 2023, when confused customers began contacting its support team, Caesr knew or should have known it was infringing, opening the door to additional damages under Regulation 3 of the IP Enforcement Regulations 2006. However, Caesr partially succeeded on its counterclaim, with the judge narrowing the scope of one DRYROBE mark under section 46(1)(a) TMA for good where no genuine use was proven. 

Commentary

This judgment offers valuable lessons for anyone building or protecting a brand:

1. Descriptive marks can survive genericide: 

   a) Even where a mark is found to be descriptive and there is evidence of generic use, rigorous brand protection strategies can preserve acquired distinctiveness. Dryrobe’s "relentless" monitoring and enforcement activities from 2019 onwards were critical to this finding.

   b) Dryrobe invested heavily in legal and online brand protection measures and developed a clear anti-genericisation strategy. This included notifying businesses that used “dryrobe” or “dry robe” of its trade marks and encouraging the use of “changing robe” as the generic term. The company launched social media campaigns such as “no substitutes” explaining that only a genuine Dryrobe from Dryrobe could be called a dryrobe and produced performance comparison videos to reinforce brand exclusivity. It also published trade mark usage guidelines on its website and actively monitored social media for misuse of the term, supported by internet crawler technology. When improper use was detected, Dryrobe engaged informally to correct it and employed an online enforcement company to ensure compliance across platforms. A PR agency monitored publications for errors, and legal action was pursued where informal measures proved insufficient. 

2. The "walking billboard" effect: 

   Bold, visible branding on products worn in public provides powerful advertising each time the product is worn, providing "commensurately greater" support for acquired distinctiveness than small, discreet logos that may be covered by other layers.

3. Actual confusion evidence remains powerful:

   The extensive evidence of actual confusion, including over thirty instances of customers seeking to return the wrong products, was described as confirming "beyond doubt the risk of confusion".

This judgment serves as a reminder that whilst choosing a descriptive brand name for an innovative product carries risks, those risks can be managed through proactive and sustained brand protection efforts. However, it also demonstrates that such distinctiveness can be eroded over time by generic use, emphasising the need for continued vigilance.