Good news / BAD news – November 2025

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Welcome to the twelfth edition of the “Good News / BAD News” Blog!

Our BAD Team (that is, our Brands, Advertising and Designs Team), serves as trusted advisers to some of the most valuable brands in the world, and we wanted to share our recent experiences in the hope of helping brand owners navigate the ever-changing landscape.

We have summarised some of the things we think you should know about right now…

1. Six months of new powers – investigations underway, drip pricing, fake reviews and more

We have now had (most of) the consumer law-focused aspects of the Digital Markets, Competition and Consumers Act (the “DMCCA”) in force for six months. Happy half-year anniversary!

While the DMCCA largely repealed and restated existing consumer protection legislation on unfair commercial practices, it also introduced new ‘always unfair’ practices, strengthened the regulator’s enforcement powers and provided for new, more significant penalties.

The DMCCA, therefore, significantly increases the level of risk attached to unfair commercial practices, including misleading marketing, directed at consumers. 

Previously, the Competition and Markets Authority (the “CMA”) had to rely on court proceedings to levy fines for breaches of consumer protection laws. However, under the DMCCA, the CMA will have powers to directly investigate and issue fines/enforcement notices. The CMA also now has the power to impose significant fines of up to £300,000 or 10% of annual global turnover (whichever is higher) in relation to final infringement notices. There is a sliding scale of fines for other breaches.

The new regime will allow the CMA to take faster, more effective action and we suspect it may well result in increased enforcement activity (with fines becoming the default). Certainly, it provides an increased deterrent in this area and should encourage brands to take consumer law compliance more seriously (placing it on a similar footing to data protection or anti-trust compliance).

The CMA has issued lots of guidance in this space – in particular on its key areas of focus: around e.g. unfair commercial practices and fake reviews.  …and breaking news, the CMA issued a DELUGE of drip pricing updates: eight investigations launched covering a number of sectors: secondary ticketing, driving schools, a gym chain, electrical goods, homeware; one hundred letters sent to retailers expressing concern (sectors: as above + tickets, travel, holidays, food & drink delivery, fashion, parcel delivery, parking, vouchers); and finalised price transparency guidance issued. For more detail, our article.

If you have received a letter, please do contact us. We have been working with businesses to help navigate this space, e.g. by reviewing customer journeys to identify potential drip pricing issues and other unfair commercial practices (dark patterns), reviewing presentation of reviews and review information and putting in place the review policy mentioned in the CMA guidance.  Please do contact Dan Smith or Zoe Pearman if you would like to discuss.

2. Influence your influencers

The CMA has updated its short form guidance for content creators and influencers, as well as for brands and agencies that use them, and its six principles for platforms.  

For brands, the key points to note are:

• labelling influencer content remains on the regulators’ radar;
• brands have a responsibility for making sure content is promoted and labelled properly, in accordance with the CMA / ASA joint guidance from 2023;
• there is a need to be clear with influencers around your expectations on labelling (#AD, etc.);
• the guidance suggests that brands should have a policy setting out the brand rules on conduct that influencers should follow and should make sure they and any intermediaries (such as a marketing or talent agency) are aware of this;
• the labelling requirements will apply in formal influencer arrangements but will also apply in situations where you simply send out free gifts to influencers simply in the hope that the influencer posts about them (so, even if you don’t ask for anything in return).  Therefore, if you send out free gifts to influencers, you should include clear instructions for labelling requirements; and
• you should monitor your influencers’ posts and if they have not labelled posts about your brand correctly, you should take action and work with your influencers/content creators. Ultimately, if the creator fails to label content correctly, you are at risk if you continue to work with them.

Other points around influencers:

• it is not only a question of labelling, influencer marketing is your marketing and regulators will look beyond the labelling and will look at the content to see if it compliant with the code rules; and

• influencer marketing would fall within the definition of “incentivised reviews” and, therefore, must not be concealed – to avoid falling foul of the DMCCA.

We regularly work with brands to prepare influencer contracts and also prepare ‘do’s & don’ts’ and other guidelines on influencer marketing to help brands head off issues by educating influencers on products and their responsibilities, to try and avoid reliance upon contractual breaches down the line.  

Please contact Dan Smith or Zoe Pearman if you would like to discuss.

3. Going greener

The EU Green Claims Directive is a proposal that was published by the European Commission on 22 March 2023.  It aims to harmonise environmental standards across all EU countries.  

The goal of the EU Green Claims Directive is to protect consumers, create a level playing field for businesses, and support the EU’s broader climate and sustainability objectives. The proposed rules aimed at tackling greenwashing will require companies to prove and independently verify any environmental claims they make about products or services. It ensures that labels like “eco-friendly” or “carbon neutral” are backed by scientific evidence, clear communication, and third-party checks.

Over the summer (June 2025), there was an announcement that this directive will be withdrawn.  However, it is now under negotiation and appears back on the legislative agenda…. we await further updates.

Regardless of the outcome, companies will have to comply with the existing anti-greenwashing EU framework, in particular the Unfair Commercial Practices Directive (UCPD), and the Green Transition Directive adopted in February 2024.  Our colleagues in France and Germany would be happy to discuss this with you.  

Greenwashing also continues to remain a hot topic outside the EU, including in the UK and Dan Smith spoke at the ICC’s The Power of Green Advertising over the summer (for those of you who missed this, take a look at the key takeaways from his discussion.

Greenwashing claims are certainly a concern for many brands, as they look to keep on top of sustainability goals and reporting. Dan Smith has usefully summarised how best to approach Green Advertising, whilst also avoiding the common pitfalls and Greenwashing.

For further information on how Greenwashing regulation impacts your brand, take a look at our guidance for businesses; and for more on the Greenwashing as a whole, we have a dedicated Greenwashing topic page.

4. Re-designing designs law

The UK government has launched a consultation on reforms aimed at creating a new designs framework, purpose-built for today’s digital landscape and better equipped to support and stimulate UK creativity and innovation.

This is the first comprehensive review of the UK’s design law regime in well over a decade, and the proposed changes are the most extensive in a generation. The government is proposing a complete overhaul of the current design framework given the rapid emergence of AI-driven tools, technological innovation and ever-changing market conditions. This consultation is wide-ranging and could lead to significant changes in how design rights are protected and enforced, and it will have a real impact on all designers and design-led businesses.  It is a very exciting time for designs lawyers!

The consultation is exploring all facets of design law reform. This includes the proposed introduction of a higher-cost, more rigorous application process for registered designs, a potentially fundamental rewrite of the unregistered design right (UDR) system, and new considerations such as registered design cases and an Intellectual Property Enterprise Court (IPEC) small-claims track. It is also inviting evidence on the possible expansion of design law criminal offences.  This could really make a material different to your business. For more information, please take a look at our step-by-step guide to the consultation.

In terms of key dates, the consultation closes on 27 November 2025, with a bill expected to be presented to Parliament in late 2026/early 2027. It is likely that any changes to the law will come into effect later in 2027.

If you have feedback on the current designs law regime, please consider submitting a response to the consultation or contact us and we can incorporate your comments into our (Gowling WLG’s) submission.  Meanwhile, John Coldham has been leading the CITMA response, has met the Minister for IP to discuss the proposals, and has contributed to the submissions of CIPA, MARQUES and IP Federation.

5. Copyright and AI

In our March blog, we mentioned that the UK Government launched an open consultation on copyright and AI. This closed earlier in the year and received over 11,000 responses and huge disagreement.  We are still awaiting the update on this…

However, there is important news in this space. Earlier this month, the judgment in the highly anticipated Getty Images v. Stability AI case was handed down.

The case concerned Stability AI’s use of millions of Getty’s images to train their large language AI models, and the resulting outputs which at times replicated the Getty watermark.

The judgment is the first to address the potential copyright and trademark infringement that arises with the use of AI models, and it paves the way for further case law in the area – it, therefore, has incredibly wide reaching implications.  Please take a look at our article for further analysis.  

6. Feeling confused?

Over the summer, the Supreme Court issued an important judgment which sought to clarify the role of the consumer context in post-sale confusion, and how this is relevant when assessing trademark infringement – this was in the case of Iconix Luxembourg v Dream Pairs.

Iconix Brand Group (“Iconix“), the owner of the popular sportswear brand Umbro, filed a claim against Dream Pairs Europe Inc (“Dream Pairs“) back in 2021, for their alleged infringement of the double diamond mark. Iconix alleged that Dream Pairs were using a logo which was confusingly similar to their trademark, which is synonymous with the Umbro brand, and features heavily on their footwear and apparel.

The relevant logos are here:

Iconix’s Umbro registered trade mark	Dream Paris

Iconix’s claim was dismissed at the High Court, on the basis that the two logos weren’t sufficiently similar, after their appeal to the Court of Appeal, the question of post-sale confusion arose.

The Court of Appeal found in Iconix’s favour, and ruled that not only were the two logos similar enough to cause a likelihood of confusion between customers; but, that when the logos were viewed in context on football boots rather than side by side, the level of similarity between them would be sufficiently high (i.e. there was post-sale confusion).

Dream Pairs appealed to the Supreme Court.

The Supreme Court found that no infringement had taken place.  BUT it did confirm that the “realistic and representative” post-sale circumstances – including viewing angles – in which consumers would see the two trademarks were relevant when assessing their similarities.

This is a key finding for brand owners who rely on the reputation of their trademarks in a real world context, as it extends their protection further than purely on the shop shelf.

7. Big reputation

The Court has granted an injunction in favour of Chanel to stop a former employee posting on her social media account, and take down previous posts, which included confidential information about Chanel. This comes at the start of a larger legal battle between the two parties, surrounding Ms Skeen’s breach of her settlement agreement.

The Court weighed up the reputation and potential damage caused to Chanel’s business in comparison to Ms Skeen’s freedom of speech when posting online.

Ultimately, the damage to Chanel’s reputation, business and relationships with customers caused by Ms Skeen’s release of confidential information was considered to be significant enough to grant the injunction preventing her from posting further and requiring her to takedown the video.

This gives guidance to brand owners looking to enforce against content posted online which has the potential to harm their reputation.

8. Sole(ly) aesthetic?

The German Federal Court of Justice issued a highly anticipated judgment regarding questions of copyright protection for works of applied art, which in this instance related to nothing less than the Birkenstock sandals.

It ruled that Birkenstock’s iconic sandal models do not qualify for copyright protection, despite their claimed brutalist design style. The Court found that the sandals lacked sufficient originality and were shaped primarily by technical necessities, not artistic expression.

Following this decision, our team has published an article comparing German and French approaches to copyright in applied art, including:

•           Why Birkenstock’s design style failed to meet originality standards under German law,

•           How French courts have granted protection to functional designs with aesthetic bias,

•           The fine line between design law and copyright law, and

•           What upcoming ECJ rulings could mean for creators of applied art.

It is important reading for brands seeking copyright protection in products on the continent.

9. Genuine use

There has been a recent case before the General Court (EU) which provides a valuable clarification on the contours of “genuine use” in EU trademark law.

Ferrari faced a legal battle over its iconic “TESTAROSSA” trade mark. 

It started when the EUIPO revoked the trademark for non‑use, but Ferrari successfully argued that its authorised dealer network’s resale of second‑hand Testarossa vehicles, together with its certification program for vintage models, constituted ongoing commercial exploitation of the sign.

The General Court agreed, emphasising that resale of second‑hand goods can amount to genuine use where the proprietor’s consent is evident, and that certification services are not ancillary but directly linked to the goods themselves. The Court further confirmed that co‑branding with a house trademark – here Ferrari – does not undermine the distinctiveness of a product trademark – here Testarossa, and that in luxury markets, even limited but consistent activity may suffice to demonstrate genuine use.

Importantly, the General Court recognised that in luxury markets, even limited volumes of sales or certification activities may suffice to demonstrate genuine use. By annulling the EUIPO’s decision, the General Court reinforced that authorised resale and after‑sales certification are legitimate strategies to preserve trademark rights, offering brand owners a practical pathway to defend iconic and luxury trademarks long against non‑use challenges after production has ceased.

Take a look at the decision.

10. Events

We have hosted some great events over the summer!

John Coldham hosted a panel event at the London Designs Festival discussing “heritage versus innovation.”  We were delighted that Sau-Fun Mo (Head of Design & LTM50 Programme Lead at London Transport Museum), James Dwyer (Creative Director, Lumsden Design) and Dan Flashman (Creative Director, tangerine) were able to join the panel – and it lead to a really interesting discussion.  If you’re interested, we also recorded a podcast.

Lucy Singer spoke at ThinkHouse Foundations (our events aimed at a junior in-house audience) and gave an update (‘Good News/BAD News’ style) update live for attendees.

John Coldham chaired two major events hosted by CITMA on the designs consultation, one involving the UK Intellectual Property Office, and one to gather the views of members to feed into the CITMA response.

Let’s pick this up in the New Year!

We have a fun event to start the year as our AD:Vice Squad will host their third annual ThinkHouse Advertising Law: A Year in Review on Thursday 29 January.

Later in the year, London will host the annual INTA conference in May 2026. We look forward to welcoming everyone to our city! Our Londoners have prepared a short guide which sets out some key information to prepare you properly for INTA, as well as some great local recommendations and insider tips. Take a look at our guide.

11. Recognition

We have had some great Legal 500 results for our BAD team and UK people:

• Media: advertising & marketing (London – tier 1 and one of only two firms classed as Global Tier 1 top-performers (!)
• Intellectual Property: Trademarks, Copyright and Design (London – tier 3)
• Intellectual Property (West Midlands – tier 1)
• Hall of Fame (Patrick Duxbury and Kate Swaine)
• Leading Partners (Huw Evans, Paul Inman and Dan Smith)
• Next Generation Partners (Samuel Beighton, Michael Carter and John Coldham)
• Leading Associates (Zoe Pearman)

We are very proud to have 10 Gowling WLG professionals who have been named as Managing IP’s 2025 “Rising Stars”!  A great achievement and very well deserved.

• UK (Michael Carter and Christopher Freeth)
• France (Alexis Augustin, Mathilde Grammont and Inès Rosen)
• UAE (Noor Hasan and Samantha Yung)
• Canada (Will Boyer, Adam Heckman and Jason Yang)

We are so proud of the team and want to thank everyone who provided feedback.

12. In the news

Finally, Co-Head of the Global Trademarks, Brands and Designs Team, John Coldham, was quoted by the UK Intellectual Property Office (IPO) when it launched its consultation to reform its design protection system, aiming to modernise the framework and support the £100bn design sector, and this was covered by Patent Lawyer and Trademark Lawyer.

Thank you to Dan Smith, Megan Wiggin, Alessandra Birkendorf, Ines Rosen and Charlotte Chambon for their work in putting this summary together.