When Success Becomes a Risk: Dryrobe v D Robe and the Fight Against Genericide

The recent High Court decision in Dryrobe Limited v Caesr Group Limited [2025] EWHC 3167 (IPEC) offers one of the clearest illustrations in recent years of how a trade mark can survive a genericism challenge through disciplined and documented brand policing. It also shows how businesses that create a new product category face unique risks when their brand name becomes the public’s shorthand for the product itself.

Background

Dryrobe launched the first changing robe of its kind in the UK market in 2010, offering an oversized waterproof garment with a towelled lining, which allowed the wearer to change underneath while staying warm and dry. Founded by former financier Gideon Bright, the brand grew rapidly. In 2016, Dryrobe became the changing robe supplier to Team GB for the 2016 Olympics and Paralympics, a collaboration that continued for the 2022 and 2024 Olympic Games, significantly increasing visibility and familiarity with the brand among UK consumers.

Competitors entered the market from around 2018, and by the time of the dispute there were said to be roughly 200 sellers of changing robes in the UK. One competitor, D-Robe, began selling robes in 2022 under the sign “D-ROBE”, making 967 sales in the first year and increasing to more than 13,000 in two to three years. Dryrobe sued for trade mark infringement and passing off. D-Robe counterclaimed by arguing that the DRYROBE marks were invalidly registered as they were descriptive and had become the generic name for changing robes, and also that some marks could be partially revoked for non-use.

Descriptiveness and Distinctiveness

The first significant issue to consider was whether or not the DRYROBE marks could be invalidated.

The court accepted that DRYROBE was descriptive for some of the goods covered, such as changing robes and waterproof clothing, since it directly described a robe designed to dry the wearer. The judge noted that the combination of “dry” and “robe” conveyed a clear and immediate message about the nature and purpose of the product, rather than requiring any interpretive step from consumers. This finding was limited to core apparel items, as the term was not considered descriptive for accessories such as bags or hats.

However, descriptiveness did not doom the mark. The question was whether the sign had nevertheless come to indicate origin through use, and the court found that it had acquired distinctiveness by the relevant date. Dryrobe’s position as a market leader, coupled with years of consistent commercial use, meant that a significant portion of the public associated the term with a single source.

The court relied on the company’s strong market presence, high sales, extensive media coverage and major commercial partnerships (including with Team GB, the RNLI and Surfing England), all of which contributed to widespread public recognition. The brand’s visibility was reinforced by prominent social‑media activity and a marketing push that expanded significantly from 2019 through to 2024, strengthening the association between the term and Dryrobe specifically.

The fact that consumers demonstrably recognised DRYROBE as identifying Dryrobe’s goods was central to the court’s conclusion. Evidence of actual confusion, including consumers mistaking D‑Robe’s goods for Dryrobe’s, further supported the finding that the mark functioned as a badge of origin. This combination of recognition, market evidence and real‑world confusion was enough to defeat the invalidity challenge.

The Genericism Challenge

D‑Robe’s central argument was that DRYROBE had become the common name for changing robes, which would render the mark invalid under UK trade mark law. The court accepted that some consumers had used “dryrobe” generically after June 2019, but it treated that as only one aspect of the evidence and not determinative of legal genericism.

The court found that Dryrobe had taken significant and sustained steps to counteract generic use. Its approach included educating consumers about the proper terminology, correcting third‑party references, and consistently reinforcing DRYROBE as a brand rather than a category term. These efforts were all relevant when assessing whether the mark continued to indicate trade origin.

Dryrobe operated what Judge Melissa Clarke described as a relentless brand‑protection strategy. Beyond correcting media and social‑media misuse, Dryrobe published guidance on appropriate trade mark use, ensured the ® symbol was used prominently across marketing, and intervened when misuse appeared in press, online marketplaces, or user content. The company also undertook ongoing monitoring, which included routine searches of social platforms and the use of automated tools to track generic use across the internet. Crucially, Dryrobe maintained detailed records of each instance of misuse and the steps taken to address it, which the court regarded as powerful evidence of active, long‑running policing.

This systematic and well‑documented approach proved decisive. Even though some consumers had started using “dryrobe” generically, the court held that the mark had not become the common name for the product in a legal sense. It continued to function as an indicator of trade origin. The judge compared DRYROBE to other well‑known brands that face every day generic use yet retain legal protection because consumers still recognise them as trade marks. With the validity of the DRYROBE mark confirmed, the court went on to consider infringement.

Infringement and Confusion

Judge Clarke found that DRYROBE and D‑ROBE were similar to a medium to high degree. Although the descriptive nature of DRYROBE might ordinarily narrow the scope of protection, the court rejected the defendant’s suggestion that any confusion was due only to inattentive consumers. The judgment records substantial evidence of actual confusion, including consumers believing the brands were connected and purchasing D‑Robe products in the mistaken belief that they originated from Dryrobe.

On this basis, the court held that there was infringement under section 10(2) of the Trade Marks Act 1994. Because the findings under s.10(2) showed that consumers made a clear mental link between the marks, the judge confirmed that the outcome under section 10(3) followed. She found that DRYROBE had the necessary reputation at the point the defendant began trading, and that the same evidence supporting acquired distinctiveness also demonstrated that attentive consumers would associate the defendant’s sign with the claimant’s marks

Unfair Advantage

The judgment makes clear that the confusion identified under section 10(2) also satisfied the economic behaviour requirement under section 10(3). This requirement asks whether the defendant’s use is likely to cause, or has caused, consumers to change the way they behave in the marketplace. For example, this could be choosing to buy the defendant’s goods when they otherwise would not. Judge Clarke found that this threshold was met because there was not just a likelihood, but actual evidence, of such a change. Consumers had bought D‑Robe’s products in the mistaken belief that they were purchasing Dryrobe’s goods. This showed that the defendant’s use had influenced purchasing decisions in a real and tangible way.

On that basis, the judge held that D‑Robe’s conduct amounted to unfair advantage. The mistaken purchases demonstrated a “transfer of image,” meaning the defendant was benefiting from Dryrobe’s brand reputation and marketing investment rather than competing on its own merits. Applying the principle from Lidl v Tesco, the court concluded that such conduct could not amount to use “with due cause,” and therefore satisfied the conditions for infringement under section 10(3) of the Trade Marks Act 1994.

Implications

This judgment, handed down on 4 December 2025, is significant for brand owners whose marks have a descriptive element. It illustrates that such marks are more vulnerable to being used generically, especially where a company creates a new market category and consumers adopt the brand name as shorthand for the product. Yet the decision also confirms that genericism is not inevitable. A descriptive mark can remain enforceable if the brand owner consistently and visibly polices misuse, educates the public, and maintains strong evidence of distinctiveness and market recognition. The court was persuaded by the quality of Dryrobe’s record keeping and the systematic nature of its enforcement work.

Conclusion

Dryrobe v D-Robe demonstrates that brand protection is an ongoing discipline rather than a one-off act. A mark with a potentially descriptive element can survive a genericism challenge if the owner takes consistent steps to maintain its distinctiveness. The court upheld the DRYROBE mark because Dryrobe invested in education, enforcement and detailed evidence gathering. The result is a reminder that a well-run brand protection strategy can make the difference between retaining and losing a valuable trade mark.

For brand owners developing marks with a descriptive element or bringing novel products to market, early and proactive policing is essential. If you would like to discuss how to protect your brand effectively or strengthen your trade mark strategy, our team at Ionic Legal is ready to assist.