Intellectual property update: key developments for in-house counsel

The intellectual property landscape continues to evolve, with developments across trade marks, copyright, patents and designs presenting both challenges and opportunities for brand owners and innovators.

This article highlights recent case law and regulatory shifts that in-house lawyers should have firmly on their radar.

Trade marks and brand protection

Brands are often more fluid than the registered trade mark laws used to protect them. Registered trade marks provide strong brand protection and there are clear advantages to maintaining a strong trade mark portfolio. However, several recent cases in the UK and EU courts serve as useful reminders of the challenges that can arise and underscore the importance of active, ongoing trade mark portfolio management.

The spectre of genericide

A trade mark application can fail, or a registered trade mark can be invalidated or revoked, where consumers commonly use the trade mark itself to describe the relevant goods or services. In other words, where the mark has become generic. “Escalator” and “trampoline” are well-known examples of genericised terms that started life as trade names.

This process of genericisation can arise as a natural consequence of the tension between the desire for broader brand recognition and the legal need for trade marks to remain sufficiently distinctive so consumers can identify where the goods or services come from. The onus falls squarely on trade mark owners to take active steps to prevent their marks from becoming generic.

In Dryrobe Ltd v Caesr Group Ltd (t/a D-Robe Outdoors) [2025], a brand owner successfully defended an attack on its registered trade mark by demonstrating the significant steps it had taken to combat generic use. These included allocating budget for legal work and online brand protection; writing to third parties who had described the products as “dryrobes” or “dry robes” to educate them about the trade marks and suggest alternative descriptions (such as “changing robe”); taking advice from an external PR agency; and implementing a comprehensive strategy to address the risk of genericisation.

That strategy encompassed educational social media posts and dedicated webpages, actively seeking out and challenging generic uses of the trade marks through both the company’s social media team and an external brand enforcement company using internet crawler technology and investing in further legal action where appropriate. Being able to evidence these efforts proved crucial for the trade mark owner.

Evidence is equally important when asserting genericism as a defence or a ground for invalidity. In Wang Zeng International Ltd v Bing Bing Foods Ltd [2026], the defendant challenged the claimant’s trade marks for “MOUNTAIN PEAR” and “YU LU FRAGRANT PEAR” on the basis that these terms were customary in the trade for varieties of fruit imported from China. However, allegations of genericism must be supported by evidence and, in this case, the court found the defendant’s evidence insufficient. The claimant’s marks were upheld as valid and infringed.

Prohibition by enactment or rule of law

In a trade mark invalidation case that progressed from the Intellectual Property Office to the UK Supreme Court, Oatly AB’s UK trade mark registration for “POST MILK GENERATION” was invalidated following an application by Dairy UK. This was because use of the mark was prohibited by provisions of the Common Market Organisation Regulation (EU) 1308/2013, which restricts the use of dairy-related terms in relation to non-dairy products. This case is a reminder that registered trade mark protection is not available where its use would contravene applicable laws or regulations.

Other examples of such prohibitions include restrictions on references to meat products for vegan substitutes, use of protected titles such as “Chartered” and geographical indications or protected designations of origin such as “Champagne” or “Parmigiano Reggiano”.

Trade mark owners and applicants will need to be mindful of applicable law-based restrictions when developing brand strategies.

Non–use and the risk of losing protection

Trade mark protection can be lost if a mark is not used, whether by the owner or by another party with the owner’s consent, for a continuous period of five years following registration. In Easygroup Ltd v Jaybank Leisure Ltd [2025], non-use was successfully deployed as a defence against infringement. While the court found that infringement would otherwise have occurred, Easygroup Ltd’s evidence was not enough to establish use during the relevant period, allowing the defendant to rely on non-use as a defence.

To mitigate the risk of a non-use challenge or defence, trade mark owners are well advised to keep comprehensive records of how and where their marks are used. The evolution of brands often results in new iterations of registered marks being used instead, which can also raise questions around non-use. Depending on how much the marks change over time, new trade mark applications may be required to ensure continued protection.

Deceptive use

A recent case in the European Court of Justice, Fauré Le Page Maroquinier SAS and another v Goyard ST-Honoré SAS, serves as a reminder that trade marks should not be registered where they would, by their nature, deceive the public. This may relate to the nature or quality of the goods or services, their geographical origin or other characteristics.

The trade mark in question was “Fauré Le Page Paris 1717”. The ECJ held that where a trade mark includes a number the public is likely to perceive as the relevant business’s date of establishment, and that date is sufficiently historic to confer prestige or an implied guarantee of quality, the mark may be deceptive if the date is inaccurate.

In-house counsel should also remain mindful of other absolute grounds that can prevent trade mark registration, including marks that are contrary to public policy or accepted principles of morality, lack distinctive character or consist exclusively of signs designating characteristics of the goods or services.

For businesses without registered UK trade marks, the common law tort of passing off may provide a remedy against misrepresentation. However, passing off claims require evidence of goodwill, misrepresentation and damage, and are generally more difficult and expensive to establish than registered trade mark infringement. Securing registered trade marks remains the most effective route to protection.

The overarching takeaway message for clients is clear: brands should be treated as living and breathing assets and their corresponding registered trade marks require active portfolio management to ensure continued protection.

AI, copyright and confidential information

While the use of AI continues to grow, many fundamental questions about the interaction between AI and intellectual property law remain unanswered as we move through 2026.

Key copyright issues include:

• The legality of training AI models using publicly available data and copyright works without consent
• Whether copyright can subsist in AI-generated works at all
• The risk of copyright infringement in AI output materials, alongside evidential challenges around copying.

These issues are closely linked, as arguably, all output material from large language models (LLMs) may be reviewed as derivative of the input material.

An opportunity for important judicial clarity on some of these questions was recently lost. In November 2025, the High Court handed down the first English judgment on generative AI in Getty Images (US) Inc and others v Stability AI [2025]. In copyright and trade mark infringement proceedings brought by Getty Images against the developers of the Stable Diffusion generative AI system, it was hoped that the court would address the use of third-party data and copyright materials in AI training. However, during the trial, Getty dropped its allegation that the use of these materials in the training of the model amounted to primary copyright infringement. One difficulty may have been Stability AI’s argument that the development took place largely outside the UK.

Getty also alleged secondary infringement through the importation of an infringing copy (the trained model) into the UK. However, the court rejected this, holding that models don’t store any copyright works but instead “learn the statistics of patterns which are associated with certain concepts found in the training data”. An appeal by Getty on secondary infringement is anticipated during 2026.

The UK government’s approach to AI and copyright has evolved over time, favouring a non-legislative approach to regulation. Following the Vallance Review, the government explored allowing text and data mining to legitimise the use of copyright materials as input data but has since reassessed its position. The government published its report and impact assessment on copyright and AI, as required by the Data (Use and Access) Act 2025, and in early 2026 the House of Lords Digital and Communications Committee also published a significant report on AI, Copyright and the Creative Industries.

The government report acknowledged strong feedback to the consultation on copyright and AI and explained a move away from a text and data mining exception. It also proposed a deeper examination of the impact of copyright laws on AI development, alongside further monitoring of international developments.

The House of Lords report strongly emphasises the need to refocus the balance between growth of the UK AI sector and protection of the UK’s valuable creative industries, cautioning against allowing the surge in AI development to overwhelm the interests of creators. This is reflected in a number of the Committee’s conclusions and recommendations, including:

• Ruling out of any reform of intellectual property law that would remove the incentive to license copyright works for AI training (for instance, the government’s proposed text and data mining exception)
• That the government should publicly support an expectation that commercial AI developers operating in the UK obtain appropriate licences when using copyrighted works to train generative AI models
• A shift towards strengthening licensing, transparency and enforcement within the existing framework alongside mechanisms to connect AI providers with individual creators and rightsholders
• The need for a clear and proportionate statutory framework for transparency reporting on data use in AI training, together with support for the development of globally aligned labelling and provenance standards
• New protections against unauthorised digital replicas (for example, deepfakes and digital clones).

Looking ahead, the government is expected to consider the House of Lords report carefully and further developments are awaited. Practitioners will be keeping a close eye on cases progressing through the courts on questions relating to AI and intellectual property.

In-house counsel will also need to be alive to the risks posed by AI to confidential information and legal privilege. The use of public AI tools can inadvertently result in the disclosure of confidential commercial information and trade secrets, so organisations should ensure appropriate policies and controls are in place. That confidential information may be retained by the AI tool and used to train the model and could appear in the output generated for a third party using the same tool.

The position regarding legal professional privilege and AI is also complex and warrants careful consideration. For example, clients interrogating public LLMs on legal matters or uploading legal advice may find that advice is no longer protected by legal privilege and may be disclosable in court proceedings.

Patents

A development for UK innovators and patent practitioners alike was the UK Supreme Court’s decision to align the UK test for patentability of computer-implemented inventions with the European Patent Office (EPO)’s approach to the European Patent Convention (Emotional Perception AI Limited (Appellant) v Comptroller General of Patents, Designs and Trade Marks (Respondent) [2026]).

In a decision that will also be of interest to constitutional lawyers, the court moved away from a staged approach, under which “programs for computers … as such” were excluded from patentability, to an “any hardware” approach. This asks:

• Whether the claim involves the use of any technical means, such as a piece of physical hardware
• Whether there’s a non-obvious solution to a technical problem, considering only those claim features that contribute to technical character.

The EPO approach is generally considered a less restrictive approach.

The full significance of this decision is not yet clear, as it has yet to be applied in the courts. However, the shift may open new opportunities for patent protection for software-implemented inventions in the UK. Businesses with software innovations should consider whether this change impacts their IP strategies.

In another noteworthy patents decision, Kohler Mira Ltd v Norcros Group (Holdings) Ltd [2025], the Court of Appeal revoked a patent for an electric shower on grounds of insufficiency. It wasn’t possible to ascertain what fell within the claims of the patent due to the inclusion of the wording “substantially unchanged” in the context of water flow rates. This wasn’t a case of a claim with a “fuzzy boundary” (which may be acceptable), but rather a claim whose boundary was impossible to establish. This case reiterates that patents must disclose the invention in sufficient detail to enable a skilled person to put it into practice. The requirement for a patentee to explain the invention to the world represents the public interest quid pro quo for the monopoly right granted by the registration of a patent.

Designs

For UK unregistered design rights, a recent successful claim underscores that the UK’s unregistered design right regime continues to provide meaningful protection for qualifying designs. Businesses shouldn’t overlook this form of IP protection. In J Mac Safety Systems Limited v Q Deck Safety Systems Limited [2025], design rights were found to subsist in designs for safety decking system components and were infringed.

In the context of registered designs, a recent decision has confirmed that a claimant in an action for unjustified threats of registered design infringement proceedings isn’t entitled to an account of profits. Damages are the appropriate remedy for compensating a party that has suffered a loss as a result of a rights owner making unjustified threats of infringement proceedings. While this may not be controversial, it’s a useful reminder of the need for caution when making allegations of infringement of registered designs, trade marks and patents, and of the remedies available (and not available) in successful threats actions.

The UK designs framework as a whole is the subject of potential reform following a recent consultation. In-house teams whose clients rely on design protection will need to monitor developments closely.

IP licensing

In Zaha Hadid Ltd v The Zaha Hadid Foundation [2026], the Court of Appeal held that a trade mark licence described as lasting “indefinitely unless terminated earlier in accordance with this clause” was terminable on reasonable notice by the licensee, even though the contract contained no express termination right. The court considered whether the parties intended the licence to run indefinitely (as opposed to in perpetuity) and, having found that intention, determined that the licensee could terminate on reasonable notice.

The decision has potentially significant implications for IP owners, who are advised to review their licensing arrangements carefully to ensure they reflect the parties’ intentions and provide appropriate certainty.

Looking ahead

The intellectual property landscape in 2026 promises to be dynamic.

From the ongoing interplay between AI and copyright to potential reforms in designs law and the continuing evolution of case law across all IP rights, there will be plenty to keep in-house lawyers busy when protecting and maximising the value of their clients’ non-tangible assets.