Dryrobe Limited v Caesr Group Limited

This Intellectual Property Enterprise Court decision is a practical branding case for businesses selling online or launching into a market with an established category leader. Dryrobe sued Caesr Group, which traded as D-ROBE OUTDOORS, over use of D-ROBE and a shield logo on changing robes and related goods.

The court found trade mark infringement under sections 10(2) and 10(3) of the Trade Marks Act 1994 and also found passing off. The defendant’s wider attack on the validity and alleged genericity of DRYROBE failed, but one registration was cut back for non-use in some goods and related services.

Dryrobe built its business around a changing robe that was accepted by the court as novel in the UK when first developed. The product was an oversized waterproof coat with a towelled lining, designed to let surfers, swimmers and other outdoor users change while staying warm and protected from the weather.

The founder began manufacturing in 2011 and sold under the DRYROBE name at outdoor sports events and through a website. The business then grew quickly. The court recorded strong sales, rising profits in earlier years, substantial advertising spend and high visibility through Google advertising, press coverage, social media and commercial relationships including Team GB, Red Bull, the RNLI and Surfing England.

The court also accepted that Dryrobe had become well known in the outdoor changing robe market. By 2021, the judge was satisfied that the Dryrobe Advance product, the DRYROBE brand and the claimant itself were all well known to consumers in that market.

Caesr Group was founded in 2021 as the vehicle for a competing business. Its founder wanted to sell a practical warm long changing robe that she considered less oversized and more stylish than Dryrobe’s main robe. She chose the name D-Robe, registered the domain d-robeoutdoors.com in February 2021, and worked with designers and a branding consultancy on the product and brand identity.

One piece of evidence became important later. During the branding process, a designer said that Dryrobe was more of a potential issue because it made the same product. The defendant still proceeded with D-ROBE branding and later used a shield logo incorporating D-ROBE.

The defendant began trading in March 2022. Its main product was the Beaufort robe, and around 95% of its sales were for that changing robe. It also sold other items such as merino jumpers, beanie hats and roll-top bags.

Dryrobe brought claims for trade mark infringement and passing off. The defendant denied infringement and argued that DRYROBE or DRY ROBE was descriptive or had become customary language for the product category. It also sought revocation of one registration for non-use in part.

The court then had to decide not only how similar the signs were, but also whether DRYROBE was still a protectable badge of origin and what the real market evidence showed about confusion.

The first issue was whether Dryrobe’s marks were validly registered and still enforceable. The defendant argued that DRYROBE and DRY ROBE described the kind, purpose or characteristics of the goods, or had become customary language in the market. In simple terms, it said the name was too descriptive or too generic to support the claim.

The second issue was infringement. The court had to decide whether the defendant’s use of D-ROBE and the shield sign on identical goods was similar enough to Dryrobe’s marks to create a likelihood of confusion under section 10(2), and whether the use also took unfair advantage of or damaged the distinctive character or repute of the marks under section 10(3).

The third issue was passing off. That required the court to consider whether Dryrobe had goodwill, whether the defendant’s branding misrepresented a connection with Dryrobe, and whether that caused damage.

There was also a narrower non-use point. The defendant sought partial revocation of one registration, the 428 mark, for certain goods and related retail services where it said there had been no genuine use within the relevant five-year period.

Dryrobe succeeded on the main dispute. The court found infringement under sections 10(2) and 10(3) of the Trade Marks Act 1994 and also found passing off.

On validity, the broader attack failed. The judge accepted that DRYROBE had descriptive aspects, but found that the marks had acquired distinctive character through use. The court was also satisfied that the marks had a reputation by the date the defendant began trading in March 2022.

On similarity and confusion, the court treated D-ROBE as the dominant and distinctive element of several of the defendant’s signs. The goods were identical. The judge found section 10(2) confusion and relied heavily on the real market evidence, including actual confusion among customers.

That evidence included customers of the defendant contacting Dryrobe about quality and repair issues, more than thirty customers trying to return the defendant’s products to Dryrobe, and a consumer trying to use the defendant’s discount code on Dryrobe’s website. The court also accepted social media evidence showing a person wearing the defendant’s coat describing it as a dryrobe.

On section 10(3), the court found that consumers would link the defendant’s signs with Dryrobe’s marks and that there had been a change in economic behaviour. The judge found that some consumers had bought the defendant’s goods believing they were Dryrobe’s, which amounted to unfair advantage and exploitation of Dryrobe’s marketing efforts.

The passing off claim succeeded for similar reasons. The court found sufficient goodwill, a misrepresentation that the defendant’s goods were associated or connected with Dryrobe, and damage.

On the non-use counterclaim, the position was more limited. The court found genuine use of the 428 mark for some items, including key straps, fabric patches, lanyards and a decorative textile article, with related services. But it found no evidence of genuine use in the relevant period for certain Class 16 goods such as gift cards, cardboard gift boxes, printed matter, gift bags, paper bags, newsletters, stickers, decals and stationery, or for beach shoes in Class 25, or related services in Class 35.

The specification of the 428 mark was therefore reduced accordingly.

The judgment also found that the defendant knew or had reasonable grounds to know it was engaged in infringing activity, for the purposes of Regulation 3 of the Intellectual Property (Enforcement etc) Regulations 2006, from at least September 2023. Whether additional damages were payable was left for later assessment.

This was not a case decided only by abstract legal comparison of two names. The court looked closely at what the parties did, what documents existed at the time, and how customers behaved in the market.

For Dryrobe, the evidence of long use, sales growth, marketing spend and public exposure mattered because it showed that DRYROBE had become distinctive in practice. The court referred to years of trading, extensive advertising, social media reach, press coverage and high-profile partnerships.

For the defendant, the branding development documents mattered because they showed Dryrobe was already on its radar as a competitor. The court also relied on the designer’s warning that Dryrobe was more of a potential issue because it made the same product.

The customer confusion evidence was especially important. Courts do not always get strong real-world confusion evidence, but here there were multiple examples. That helped the judge move beyond theory and assess what ordinary buyers were actually doing.

The court also looked at what happened after concerns were raised. Warning letters were sent in April 2022. The judge found that by at least September 2023, when confused customers were presenting themselves and the defendant already knew of Dryrobe’s concerns, the defendant knew or had reasonable grounds to know it was engaged in infringing activity.

The useful lesson is not simply that copying a competitor is risky. The harder point is that a business can still infringe where it chooses a name that feels descriptive, shortens or tweaks a known brand, or places the wording inside a different logo.

The court looked at the real buying context. These products were sold online, so visual impression mattered. The judge also applied the ordinary idea of imperfect recollection. Customers do not compare marks side by side with legal precision. They remember the general impression and may assume a connection, extension or sub-brand relationship.

This matters for founders because many naming decisions are made for marketing reasons first. A name that hints at what the product does may feel commercially smart. But if it sits too close to a recognised competitor’s mark, especially on identical goods, it can still create serious legal risk.

The case also shows that actual confusion is powerful evidence. If your team starts seeing returns meant for another business, customer complaints sent to the wrong company, or social posts misidentifying your product, do not dismiss that as harmless noise. It may be evidence that your branding is too close.

Finally, warnings matter. If a designer, consultant, lawyer or competitor flags a problem, you need to investigate properly. Continuing to trade after repeated warning signs can make the dispute harder to defend and more expensive to resolve.

If you are naming a new product, sub-brand or ecommerce label, the cheapest time to deal with trade mark risk is before launch. Once stock is ordered, labels are printed and ads are live, changing course becomes much more expensive.

This case is a good reminder to test a proposed name in the way customers will actually encounter it. That means not only a trade mark register search, but also a practical review of how the sign looks and sounds in use.

The judgment was given on 4 December 2025 in the Intellectual Property Enterprise Court. It decided liability issues on infringement, passing off, validity and partial non-use revocation. The judgment also decided that the defendant knew or had reasonable grounds to know it was engaged in infringing activity from at least September 2023 for Regulation 3 purposes.

The judgment records that Dryrobe sought remedies including injunctions, delivery up, destruction, damages or an account of profits, publication and costs. This decision is most useful as a guide to liability, confusion evidence, acquired distinctiveness and naming risk in a competitive product market.