Dispute resolution & litigation

Shifting landscape: Employment insights from the 2026 Litigation Risk Report

Wed, 20 May 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:a6f979f0-cc83-4087-a19b-ed7808bf676a/as/ART-US00010.avif?assetname=ART-US00010.jpg

Article | 4 min read

Shifting landscape

Employment insights from the 2026 Litigation Risk Report

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

This article explores the employment related findings of the 2026 Litigation Risk Report and considers what they mean in practice for employers and HR professionals as we enter a period of significant change.

Published: 20 May 2026
Author: Phil Crowe & Rachel Taylor

/content/dam/shoosmiths/lawyers/phil-crowe/profile

/content/dam/shoosmiths/lawyers/rachel-taylor/profile

false

style

single-column-text

Shoosmiths’ 2026 Litigation Risk Report provides valuable insight into how disputes are evolving, where organisations are most exposed, and which emerging themes HR teams should have on their radar. Drawing on the perspectives of more than 360 general counsel and senior in-house lawyers across the UK, the report highlights a rapidly shifting landscape shaped by legislative reform, data-driven disputes and the growing influence of artificial intelligence (AI).

This article explores the employment related findings of the 2026 report and considers what they mean in practice for employers and HR professionals as we enter a period of significant change.

Employment disputes: Trends and what lies ahead

The report notes a slight reduction in employment disputes compared with the previous year. However, this position is not expected to continue. With the implementation of the Employment Rights Act 2025 (the ERA), disputes are anticipated to increase significantly over the coming years. Historically, an expansion of workers’ rights has been accompanied by a corresponding rise in Employment Tribunal claims, and the ERA introduces a number of changes that are likely to materially increase employers’ litigation risk exposure.

One of the most significant changes will be the extension of the limitation period for most Employment Tribunal claims, from three months to six months, giving employees more time to reflect, seek advice and decide whether to pursue a claim. This change is expected to take effect on 1 October 2026.

Further significant changes which have been confirmed will take effect from 1 January 2027, include:

a reduction in the qualifying period to bring an unfair dismissal claim
the removal of the compensation cap for unfair dismissal.

Although unfair dismissal will not become a day-one right, these reforms represent a marked shift. Around 6.3 million employees currently fall within the six-month to two-year service bracket and currently have limited protection against unfair dismissal. From 2027, employees with just six months’ service will be able to bring unfair dismissal claims.

As a result, robust recruitment processes, effective probation management and early-stage performance management will become even more critical.

Data subject access requests as a litigation tool

The report highlights the growing use of data subject access requests (DSARs) in employment disputes. Employees are increasingly using DSARs to obtain material to support claims or to increase the cost and complexity of defending proceedings.

AI is also making it easier for individuals to generate lengthy and complex DSARs, significantly increasing the time and cost burden on organisations. As a result, disputes are becoming more resource-intensive, underlining the importance of having robust processes in place to meet statutory timescales and to make sure responses are compliant.

AI‑related employment disputes: the top litigation risk

AI-related litigation risk has emerged as the most significant concern for respondents to the report, overtaking both intellectual property and breach of contract claims. More than half of respondents to the report expect AI-related disputes to increase.

AI‑generated employment claims: Claimants are already using AI tools to draft Employment Tribunal claims, correspondence and even witness statements. While these documents are often lengthy and follow similar structures, they do not always clearly articulate the legal basis of the claim, making them time-consuming and costly for employers to assess and respond to
restrictions on workplace AI use: The report reveals that 43% of respondents have introduced restrictions on AI use in the workplace, highlighting how prominent these risks have become. Clear policies, supported by targeted training, are essential to ensure employees understand not only what AI can be used for, but also its limitations and prohibited use
discrimination risks from automated decision‑making: AI systems can unintentionally replicate or amplify bias, particularly where they are trained on biased datasets. Where automated tools disadvantage certain groups or produce inconsistent outcomes, employers may face claims under equality legislation. These risks are expected to increase over the next three years.

While AI can offer significant opportunities for efficiency and innovation, these benefits must be carefully balanced against the growing employment and litigation risks associated with its use.

Managing AI-related employment risk

Effective AI risk management starts with understanding how AI is being used across the organisation. Clear training, supported by practical AI policies is essential to ensure employees understand acceptable use and associated risks.

Regular auditing of AI outputs is also a critical risk‑mitigation tool, helping organisations identify emerging issues and unintended consequences at an early stage. Ongoing testing to detect and address potential bias remains an essential part of responsible AI use in the employment context.

From a data protection perspective, employers must ensure they have a lawful basis for processing personal data, understand how AI tools operate and are transparent about the use of AI in relevant workplace processes.

Managing litigation risk: practical steps from the report

The report identifies several ways organisations are seeking to reduce exposure.

One notable development is the restriction on WhatsApp for work-related communications. One in four organisations has taken this step, rising to 42% in the financial services sector. WhatsApp messages frequently feature in Employment Tribunal proceedings, and the lack of oversight can present a real risk. Whether this approach is workable will depend on sector and workforce structure. While alternatives like Microsoft Teams may suit employers in the financial services sector, WhatsApp messaging can be harder to replace in sectors such as retail or automotive.

Another key strategy is targeted training for managers. Line managers are often making day-to-day decisions that later come under legal scrutiny. Providing early and practical guidance can materially reduce the risk of disputes.

Organisations are also encouraged to:

regularly review policies and procedures
conduct litigation preparedness reviews to identify areas of exposure
review AI governance and internal controls to ensure AI is used appropriately.

Conclusion

Our 2026 Litigation Risk Report makes clear that employment litigation risk is evolving rapidly. Employers that take early action by strengthening policies, upskilling managers, improving documentation and implementing clear AI governance will be better placed to navigate an increasingly complex litigation landscape.

You can download a copy of the report here: Litigation Risk Report 2026.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

Valuing reality: What Dyer means for business rates & fit-out

Tue, 19 May 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:55810698-155e-4f77-8c56-17ddbb298543/as/ART-kajetan-powolny-P9PHGQ02vFQ-unsplash.avif?assetname=ART-kajetan-powolny-P9PHGQ02vFQ-unsplash.jpg

Article | 3 min read

Valuing reality: What Dyer means for business rates & fit-out

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

In a recent Upper Tribunal decision, commercial occupiers have been reminded that business rates do not exist in a vacuum.

Published: 19 May 2026
Author: Sophie Tracey

/content/dam/shoosmiths/lawyers/sophie-tracey/profile

/content/dam/shoosmiths/lawyers/laura-kent/profile

false

/content/dam/shoosmiths/lawyers/anjali-patel/profile

false

style

single-column-text

Where offices have moved beyond a basic Cat A fit‑out to a more bespoke Cat B configuration, rateable value should reflect the physical reality of that enhanced hereditament.

Fit‑out decisions, dilapidation strategies and occupation profiles can therefore all have unintended rating consequences – meaning that occupiers need to take early advice on the knock-on effects of customisation of their premises.

How is rateable value calculated?

Rateable value (RV) is an estimate of the annual rent a ‘hereditament’ (essentially, a unit of property) could achieve on the open market.

It is a hypothetical rental value, assessed by reference to the antecedent valuation date (AVD), but reflecting the physical state of the property and any relevant circumstances on the ‘material day’. For properties entered onto the ratings list after the AVD, the material day is typically the date they were entered – meaning that strong comparative evidence is crucial to the exercise.

In the Upper Tribunal’s recent decision on appeals by two valuation officers (considered together and known as Re Dyer and Re Johnson), the relevant premises were occupied on the material day and were therefore valued including the sitting tenant’s fit out, known as ‘Cat B’ condition.

How does tenant’s fit out affect the RV of its premises?

As highlighted in Re Dyer, most lettings in the office market are actually of properties in Cat A condition (i.e. a standard developer or landlord’s shell or standard fit-out). These lettings are therefore of limited use to valuers, but direct Cat B comparables are themselves limited.

The starting point is therefore often Cat A rental evidence, ‘toned’ by adding an uplift to reflect the value of the element of the Cat B fit out that would have general market appeal. In Bunyan v Acenden [2023], for example, this was assessed at 4.4% of the capital amount of expenditure. However, where the tenant’s fit out is overly bespoke, this can instead depress values.

In Re Johnson, the primary evidence came from sub-lettings between law firms, where the expected fit out was relatively consistent across occupiers.

Key considerations for occupiers

1. Plan early

The 1 April 2026 revaluation has reset RVs across England and Wales, based on a new AVD of 1 April 2021. The result is sector- and location-specific shifts, with some occupiers seeing significant movement. The introduction of more permanent reliefs/multipliers (particularly in retail, hospitality and leisure) has also altered the landscape, making forward planning essential.

2. Do your due diligence

There is evidence both in the property and national press that the new list has not been implemented consistently, with errors in RVs, multipliers and reliefs. It is well worth your time checking rateable value, factual accuracy for the property e.g. floor area, use and layout, and whether correct multiplier and reliefs have been applied.

3. Check, challenge, appeal

The system for challenging rates valuations first requires you to raise a ‘check case’ and then ‘challenge’ via the Valuation Office’s electronic portal. This can then be appealed if you still disagree with the challenge decision (within four months of the date of the decision), or if you have not had a reply within 18 months.

In another Upper Tribunal appeal, Caffe Concerto v Johnson [2026], the VTE confirmed its discretion to extend appeal deadlines, applying the Denton principles – but this should not be relied on, and deadlines remain critical.

4. Factor rating into fit-out and works

Physical changes to property such as tenant fit-out can increase RV where it adds value, but landlord works or contributions may also have unintended rating consequences. Occupiers should therefore price rating risk into fit-out decisions and negotiations.

In the Hitchings appeals [2025], the Tribunal was reluctant to determine whether a landlord’s contribution to a Cat B fit out should be preferred over the actual cost of the fit out.

Instead, whilst there is no automatic ‘strip back to Cat A’ rule, the Tribunal must look at the actual physical state of the property and its utility in the market.

5. Evidence is king

As highlighted in Re Dyer, the Tribunal is often dealing with “less than helpful” evidence, particularly given the scarcity of Cat B comparables (described in one case as “virtually impossible to come by”).

The Tribunal will engage closely with hard factual evidence of the condition of the hereditament, not general market narratives. Floorplans, photos, specifications and evidence of actual works carried out can all be decisive.

Where necessary, an application to the Tribunal for an order for disclosure or a witness summons could encourage production of better evidence.

6. Remember it’s not all about works

Changes in mode or category of use of the property can also trigger revaluation.

Remember too that certain tenancy arrangements will be subject to more scrutiny than others – there are known issues with valuing flex or serviced office space either per individual tenant or as a single office space, for example – so be alive to potential issues. Once a valuation ‘tone’ is established, the Tribunal may seek to prioritise consistency across the list rather than seeking to arrive at the ‘perfect’ number.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-real-estate

]]>

Renters’ Rights Act reset: What landlords can no longer ignore

Fri, 15 May 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:fb6d25aa-9f08-467d-8f0e-e9962c56c9d4/as/ART-US00167.avif?assetname=ART-US00167.jpg

Article | 2 min read

Renters’ Rights Act reset: What landlords can no longer ignore

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Following the abolition of “no fault” evictions on 1 May 2026, the Court of Appeal’s decision in Muca v El Amrani has thrown doubt on the validity of existing section 21 notices.

Published: 15 May 2026
Author: Simon Foster

/content/dam/shoosmiths/lawyers/simon-foster/profile

/content/dam/shoosmiths/lawyers/laura-kent/profile

false

style

single-column-text

Following the rush to serve section 21 notices ahead of the abolition of “no‑fault” evictions on 1 May 2026, many landlords will have been breathing a sigh of relief and hoping they had successfully navigated the transition to the new Renters’ Rights Act regime of open‑ended periodic tenancies and reformed rent review procedures.

However, the Court of Appeal’s decision in Muca v El Amrani – handed down on the eve of section 21’s abolition – has thrown a significant complication into that assessment.

The legal background

To serve a valid notice under section 21 of the Housing Act 1988, a landlord needed to have complied with certain prescribed requirements. One of these is the gas safety obligation: the landlord must provide the tenant with a valid gas safety certificate (GSC) before the tenant first goes into occupation, and again after each subsequent inspection.

Until recently, uncertainty remained over whether a failure to provide the initial GSC could be remedied later.

The Court of Appeal’s decision

The Court of Appeal has now confirmed that failure to provide a GSC before the start of the tenancy is an irremediable breach. Where that requirement has not been met, the landlord can never serve a valid section 21 notice in respect of the tenancy.

The court made it clear that late service of the GSC does not cure the breach. Even where all subsequent certificates are provided, section 21 cannot be relied upon to recover possession.

This settles a long‑standing divergence of approach in the lower courts and brings much‑needed clarity – albeit with significant consequences for affected landlords.

Why this still matters

Although section 21 notices can no longer be served, existing notices served before 1 May 2026 may still be relied upon, provided proceedings are issued by 31 July 2026 under the transitional arrangements – and provided that the notice is valid.

Muca v El Amrani is therefore critical when assessing the viability of any ongoing or contemplated claims based on historic section 21 notices. Where the initial gas safety certificate was not provided before occupation, those claims are vulnerable to being struck out.

In such cases and following the changes brought in by the Act, landlords will be required to start again by serving a section 8 notice, specifying statutory grounds for possession. This inevitably carries greater evidential burden, cost and delay.

Ongoing compliance under the new regime

While serving new s.21 notices will no longer be possible, gas safety obligations remain firmly in place.

Under the new regime, landlords must ensure all new tenants are informed of their gas safety obligations through the Written Statement of Terms (whether incorporated into the tenancy agreement or provided as a standalone document), including the requirement to provide copies of gas safety records. These obligations are also expected to feed into the forthcoming landlord database requirements.

In the meantime, it is crucial that all landlords remember their first obligation under the new regime – to serve Information Sheets on their existing tenants by no later than 31 May 2026. Landlords of student accommodation should double-diarise this date if they intend to rely on the transitional provisions of the Act and regain possession this summer, as the deadline to serve a warning notice of their intention to rely on Ground 4A is also 31 May 2026.

Next steps

Landlords (and their advisers) should carefully review any live section 21 notices and related proceedings to ensure they remain legally sound in light of Muca v El Amrani.

If you would like assistance reviewing existing notices or understanding the possession options now available under the Renters’ Rights Act regime, please contact Simon Foster, who leads Shoosmiths’ specialist residential possession team.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-real-estate

]]>

When contempt goes too far: Strike-out in Bargain Busting v Shenzhen SKE

Wed, 13 May 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:c6107802-fc86-4745-8c90-401e29d03dfb/as/ART-US00130.avif?assetname=ART-US00130.jpg

Brand interchange | 7 min read

When contempt goes too far

Strike-out in Bargain Busting v Shenzhen SKE

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Decision: Bargain Busting v Shenzhen SKE Technology Company & Others [2026] EWHC 933 (Ch)
Court: High Court of England and Wales
Judge: HHJ Matthews
Decision: Here
Key issues: Contempt of court

Published: 13 May 2026
Authors: Shojibur Rahman

/content/dam/shoosmiths/lawyers/shojibur-rahman/profile

false

style

single-column-text

Introduction

In Bargain Busting v Shenzhen SKE Technology, HHJ Matthews struck out an application for criminal contempt, an emphatic reminder that contempt is an exceptional jurisdiction, not a routine litigation tactic. The judgment is a helpful read for anyone contemplating criminal contempt proceedings: the court will look for a genuine, realistic risk to the administration of justice, not sharp correspondence or robust submissions.

Background

On 10 May 2022, Bargain Busting applied to register the trade mark CRYSTAL BAR for class 34 goods (including electronic cigarettes and vape bars). Shenzhen SKE Technology opposed the application at the UK Intellectual Property Office under section 5(4)(a) of the Trade Marks Act 1994, but the Hearing Officer rejected the opposition and the application was allowed to proceed.

Shenzhen SKE Technology then appealed to the High Court, but the appeal was dismissed. The parties subsequently agreed a form of order on 7 July 2025 requiring the mark to proceed to registration, while preserving Shenzhen SKE Technology’s right to seek permission to appeal to the Court of Appeal by 25 July 2025.

The next step sparked the dispute. On 14 July 2025, the UK Intellectual Property Office asked the parties for an update on the High Court appeal. Bargain Busting supplied the order (copying Shenzhen SKE Technology), and a short exchange followed with the UKIPO. A précis is set out below:

14 July (from Shenzhen SKE Technology’s lawyers): “… Please kindly note that the judge’s order … includes a deadline of 25 July 2025 to apply to the Court of Appeal for permission to appeal … We therefore respectfully request that no registry updates are effected at present …”
14 July (from Bargain Busting’s lawyers): “The order has immediate effect and applying for permission to appeal does not stay the order.”
17 July 2025 (from Shenzhen SKE Technology’s lawyers): “… we respectfully disagree. Our client presently intends to appeal the Order to which Brandsmiths refer … Consequently, … CRYSTAL BAR should not be registered until after either permission to appeal is refused, or, if it is granted, the final determination of any appeal … Allowing … CRYSTAL BAR to be registered effectively deprives the parties’ legal rights to appeal under paragraph 4 of the court order … The UKIPO is under a public duty to maintain the register of trade marks ensuring they are as accurate as possible. Should the UKIPO proceed to register this mark but later the court decides that the mark should not be registered and the UKIPO has to cancel the registration, it will be wasting the UKIPO’s time. Innocent third parties who rely on the UKIPO’ register during that period may also be misled by the status of … CRYSTAL BAR …”
24 July (from Bargain Busting’s lawyers): “The wording of the Order was agreed by the parties in advance of it being finalised and handed down by the High Court. If SKE … wanted the registration of the mark to be dependent or contingent ‘until after eitherpermission to appeal is refused, or, if it is granted, the final determination of any appeal’, they should have made this clear at the appropriate time and suggested amendments to the wording of the Order to be agreed and finalised in advance of it being handed down, but this did not happen. Paragraph 2 of the Order states that ‘[CRYSTAL BAR] shall proceed to registration’ … an appeal does not operate as a stay … we are extremely concerned that [Shenzhen SKE Technology’s lawyers are] attempting to mislead the Tribunal and interfere with the due administration of justice by seeking to call into question a mandatory Order from a High Court judge …”

Bargain Busting subsequently issued an application for criminal contempt (alleging intentional interference with the administration of justice) against Shenzhen SKE Technology and its lawyers. It also warned the UK Intellectual Property Office that High Court proceedings would follow if the mark was not registered by 16:00 on 27 August 2025. The UK Intellectual Property Office did not register the mark, but instead listed a hearing before Dr James Porter (Chief Hearing Officer) on 12 September 2025. Given the contempt allegations, Shenzhen SKE Technology and its lawyers attended that hearing but made no representations. In parallel, Shenzhen SKE Technology sought permission to appeal and applied to vary the High Court order to secure a stay pending any appeal.

In his decision, the Hearing Officer noted that Shenzhen SKE Technology’s request (to leave the register unchanged until all routes of appeal were exhausted) was common before the UK Intellectual Property Office (it arising from the long standing practice in Planet Epos v. Nettec Solutions BL O/373/02). He also noted that the Trade Marks Manual, while not binding, indicated that the Planet Epos applies to all levels of appeal, including to the Court of Appeal. However, he noted that, in practice, the specific issue had not been addressed (either because the High Court order expressly provides for a stay or because the parties adopt a pragmatic approach, waiting until all routes of appeal are exhausted). He then concluded:

“It is clearly unsatisfactory for rights to come on and off the register, leaving third parties and the wider public in a position of considerable uncertainty. Having rights appear and disappear (or vice versa) may raise significant questions over the status of infringing acts, and third party terms may be needed to regularise the position of parties. It may also lead to considerable uncertainty in proceedings where the existence of earlier registered rights is relied upon.

However, despite the practical concerns, I conclude that POINT FOUR does not establish that the Registrar can leave the register unchanged in light of a court order.”

Shenzhen SKE Technology then applied to strike out the contempt allegations. That application came before HHJ Matthews.

Decision

HHJ Matthews drew on (among other authorities) BHP Group (UK) Limited v Municipio de Mariana [2026] EWCA Civ 294, which distilled eight principles governing criminal contempt. Against that framework, he made the following findings:

requests are not “misstatements”: Much of the relied-upon conduct was framed as requests or submissions, not statements of fact. A request that a public body take (or refrain from taking) a step cannot, in itself, be false or misleading in the way required for contempt.
no realistic risk of interference: The UKIPO alone controlled whether the mark would be registered. It was aware of the legal position and could not be compelled by the parties, so the respondents’ conduct could not affect (or realistically risk affecting) the outcome.
aligned with longstanding UKIPO practice: The representations sat comfortably with the UKIPO’s established approach of pausing implementation pending appeals, making it harder to characterise the conduct as improper.
robust arguments are not contempt: Parties are entitled to advance submissions about how the law applies. The fact an argument is rejected does not make it improper, still less contemptuous.
public interest threshold not met: Criminal contempt protects the public interest in the administration of justice, not private litigation advantage. The court saw no evidence of an intention to interfere with justice, and the threshold was not approached.

On that basis, he struck out the contempt application: the pleaded conduct did not meet the legal threshold for criminal contempt, there was no real risk to the administration of justice, and the claim disclosed no reasonable grounds.

Comment

In striking out the application, HHJ Matthews also stepped back to make broader, timely observations about how contempt is being used in modern litigation:

“What has happened in this case is nowadays an increasing problem for the courts. The courts now see even small (alleged) breaches of any orders, not necessarily injunctions, and indeed the conduct of litigation more generally, being threatened with contempt proceedings. In the old days, there would simply have been an application to enforce the original order. As one might expect, and as has happened here, such proceedings being launched are then often followed by applications from the respondents to strike out those proceedings. This slows down the litigation and consumes a lot of time and money. It is trite to say that the contempt jurisdiction is being ‘weaponised’ in a way that it has not been before. Certainly, I do not recall anything of this kind when I first started to practise law in the 1980s. Contempt applications were rare beasts, reserved for serious cases of non-compliance with injunctions or orders for specific performance, or for serious disruption of court hearings and interference with juries.

I appreciate that the contempt jurisdiction may be viewed by some litigators today as just another stick to beat your opponent with: the old adage is transmuted for modern times to All’s fair in love and litigation. In some cases, too, it may also be seen as a marketing tool for professionals, whether lawyers or others, to show how strong and fearless they are, and how committed they are to their clients’ cases. But in my judgment these are notfunctions of the contempt jurisdiction at all. Worse, and as I have said, its misuse consumes valuable judicial and legal resources, and costs a great deal of money. And this cannot help but prejudice other litigants seeking to have their disputes settled sooner rather than later. This is an unnecessary burden on society. In my judgment, the contempt jurisdiction should be exercised only where it is properly justified, and the courts should be vigilant to see that its exercise is so confined.”

The takeaway is simple but important: contempt is for serious misconduct that poses a real risk to the administration of justice. If the complaint is really about how an order should be implemented (or whether a step should be paused pending appeal) the court will expect parties to use the ordinary procedural tools, not the criminal contempt jurisdiction.

Addendum

Subsequent to the successful application for strike out, HHJ Matthews considered Shenzhen SKE’s costs (which were £296,099.61 plus applicable taxes) and permission to appeal.

He concluded that Bargain Busting should pay the costs on an indemnity basis, with an interim payment to be made of £215,000. The costs are to be the subject of a detailed costs assessment. He noted:

“In my judgment, whether or not these various factors would each individually justify an award of costs on the indemnity basis, I am quite satisfied that, taken together, they do so overwhelmingly. The claimant made very serious allegations against the defendants, and lost. It was wrong and out of the norm for the claimant’s solicitors opportunistically to seek to use criminal contempt proceedings, in which the touchstone is the public interest in the administration of justice, in order to pursue their client’s private interests. It was wrong and out of the norm for the claimant’s solicitors to threaten the defendants with being reported to the SRA in order to persuade them to agree to their client’s terms. The claimant must pay the defendants’ costs on the indemnity basis.”

Permission to appeal was refused.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

When freedom of expression bites back: Injunctions & actionable threats in Bargain Busting v Shenzhen SKE Technology Company

Wed, 13 May 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:30be58aa-5e1c-48ab-ad3d-cb0078633b4a/as/ART-US00025.avif?assetname=ART-US00025.jpg

Brand interchange | 4 min read

When freedom of expression bites back

Injunctions & actionable threats in Bargain Busting v Shenzhen SKE Technology Company

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Decision: Bargain Busting v Shenzhen SKE Technology Company [2026] EWCA Civ 532
Court: Court of Appeal (Civil Division)
Judges: Arnold LJ; Laing LJ; Warby LJ
Decision: Here
Key issues:

actionable threats
interim injunctions
Human Rights Act 1998

Published: 20 May 2026
Authors: Ellen Hughes-Jones

/content/dam/shoosmiths/lawyers/ellen-hughes-jones/profile

/content/dam/shoosmiths/lawyers/claudine-sheers/profile

false

style

single-column-text

Introduction

How hard is it to stop a trade mark owner from writing to the market? In Bargain Busting v Shenzhen SKE Technology, the Court of Appeal set aside an interim injunction that had restrained Bargain Busting from making alleged actionable threats to Shenzhen SKE Technology Company’s (SKE) supply chain. The key reason: where an injunction would restrain speech before trial, section 12(3) of the Human Rights Act 1998 applies a heightened merits threshold and the first‑instance judge had not applied it.

Background

Bargain Busting owns UK trade marks including CRYSTAL BAR, CRYSTAL CLEAR VAPOURS ELECTRONICS CIGARETTES, and CRYSTAL ADDICT (figurative) in class 34, covering (among other things) electronic cigarettes. SKE has challenged the validity of some of these marks via opposition and/or revocation proceedings.

On 18 September 2024, Bargain Busting issued infringement proceedings against SKE, alleging that SKE’s use of signs containing the word CRYSTAL (the CRYSTAL Signs) on vape products infringed its trade marks. Then, on 23 and 24 December 2024, Bargain Busting’s solicitors wrote to eleven of SKE’s distributors, wholesalers and/or retailers. The letters said Bargain Busting considered the use of the CRYSTAL Signs to be infringing and explained that Bargain Busting intended to apply to add those recipients as defendants in the main claim.

That kind of correspondence matters because sections 21A–21F of the Trade Marks Act 1994 create a cause of action for actionable (or unjustified) threats. A person aggrieved by threats of trade mark infringement can seek a declaration that the threats are unjustified, an injunction to stop them, and damages for any loss. The policy aim is to prevent rights holders from pressuring a competitor’s customers (sometimes with immediate commercial impact) without having to put their infringement case before the court. It was common ground between the parties that whether the letters were “justified” would depend (at least in part) on the validity of the marks relied on.

SKE applied on 21 January 2025 for an interim injunction to restrain further alleged actionable threats, which came before the court on 30 April. In response to the application, Bargain Busting invoked section 12 of the Human Rights Act 1998, which restricts the grant of pre‑trial relief that would restrain publication (and so engages freedom of expression):

“(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

…

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

…”

At first instance, the judge held that the correct approach applying section 12(3) was as follows:

“… it appears to me that applications for injunctions in respect of allegedly unjustified threats will often fall within the exceptional category of cases identified by Lord Nicholls in Cream Holdings. The key question as far as the merits threshold is concerned is whether the court is satisfied the applicant’s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. To require the higher threshold to be met in all such cases would to my mind undermine the protection intended by Parliament in enacting the unjustified threats provisions. A party may need to move quickly to seek such an injunction as losses can be rapid as the market is cleared. It would to my mind generally place too high a barrier in the way of applicants in such cases to require them to show that they will probably win at trial.”

On the (necessarily limited) evidence available at the interim stage, the judge assessed SKE’s prospects on the relevant marks as follows:

CRYSTAL BAR: “While SKE was able to show a serious issue to be tried, I cannot conclude on the limited materials before me on this application that SKE has “a better than evens chance of success” on its section 5(4)(b) case” and “SKE has established no more than a standard serious issue to be tried” on its section 3(6) case;
CRYSTAL CLEAR VAPOURS ELECTRONICS CIGARETTES: The judge was “satisfied that SKE has a realistically arguable case [of non‑use], which may well succeed at trial”; and
CRYSTAL ADDICT (figurative): The judge could “conclude no more than that there is at least a serious issue to be tried in relation to it”.

Pulling those strands together, the judge held that, so far as section 12(3) was concerned, SKE’s prospects were “sufficiently favourable to justify” making the order in the circumstances. He therefore granted an interim injunction restraining Bargain Busting from making further threats.

Appeal

Bargain Busting appealed, arguing that the judge had applied the wrong legal test. Relying on Cream Holdings Ltd v Banerjee [2004] UKHL 44, it said that section 12(3) ordinarily requires the claimant to show it is more likely than not to succeed at trial before the court restrains publication.

Arnold LJ (with whom Laing LJ and Warby LJ agreed) accepted that submission. The Court of Appeal held that the first‑instance judge had not applied the general rule in Cream Holdings. In particular, because the judge had not found that SKE’s threats claim was more likely than not to succeed (and there was no respondent’s notice inviting the Court to uphold the injunction on that basis) the injunction could not stand. The interim restraint was therefore overturned.

Comment

The judgment makes clear that section 12(3) is not a mere ‘gloss’ and, if the relief sought would restrain publication (including letters to the trade), the court must grapple with the section and the merits threshold.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

New limits on non-disclosure obligations: A barrier to resolution?

Tue, 12 May 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:d2520904-7a86-4b11-a6d0-343716970bb1/as/ART-US00092-(9).avif?assetname=ART-US00092+%289%29.jpg

Article | 3 min read

New limits on non-disclosure obligations: A barrier to resolution?

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

New limitations on an employer’s ability to prevent allegations of discrimination and harassment becoming public are expected in 2027. The changes aim to foster a culture of openness and accountability, but will they in fact create a barrier to resolution?

Published: 12 May 2026
Author: Lauren Wilson

/content/dam/shoosmiths/lawyers/lauren-wilson/profile

false

style

single-column-text

What’s proposed?

Section 24 of the Employment Rights Act 2025 (ERA 2025), once implemented, will render a contractual non-disclosure obligation void if it would prevent a worker from making an allegation of workplace harassment or discrimination or an allegation around the employer’s response to any such allegation. That is unless the non-disclosure obligation is contained within an ‘excepted agreement’.

Even with an ‘excepted agreement’ in place, workers will still be able to disclose allegations to certain prescribed persons, such as to the police or victim support services (known as ‘permitted disclosures’).

On 15 April 2026, the government launched a consultation seeking views on what conditions should be required for an agreement to be an ‘excepted agreement’; the categories of person to which permitted disclosures may be made; and whether the protection should, in the future, be extended to non-workers.

The government accepts that non-disclosure obligations (NDOs) can be appropriate in some cases, particularly where a worker wants to enter into a settlement agreement with their employer with the assurance that the matter will stay confidential. However, the consultation paper states that, currently, “Some employers have exploited the inherent power imbalance in the workplace to get NDOs signed by workers, creating a culture of secrecy and sometimes leaving perpetrators in place to offend again.” The government’s hope is that, by introducing the proposed changes, workers will be protected from coercion and will only enter into NDOs if fully informed, being empowered to make the decision which is right for them.

It is proposed that, for an agreement to be an ‘excepted agreement’, the worker must:

receive independent advice on the effect of the NDO contained within the agreement from a prescribed person who has indemnity insurance in place and whose name is included in the agreement
express their preference to enter into the agreement containing the NDOs in writing, having had independent advice – employers may even be prevented from proposing an agreement with NDOs as an option
have a right to withdraw from the agreement during a cooling off period (suggested as 14 days following the date of the agreement) or during a mandatory review period prior to entering into the agreement – the right to withdraw may apply to the agreement as a whole, rather than the NDO only. This could cause difficulties in the context of settlement agreements as an employer would not want to pay settlement money during any cooling off period.
be given a physical copy of the agreement containing the NDOs after it is signed, with it also being available in an accessible format – there may also be a requirement for the agreement to be written in ‘plain English’
only be prevented from making allegations of harassment or discrimination which has already taken place – meaning a provision seeking to prevent a worker from reporting a new instance would be unenforceable.

The government is also consulting on whether excepted agreements should be time-limited. This is not being actively proposed but it could be implemented if deemed appropriate following the responses to the consultation.

The legislation will apply to any contractual non-disclosure obligation, whether in a contract of employment, a standalone confidentiality agreement, a settlement agreement or otherwise. However, it will not apply retrospectively – only agreements entered into once the legislation is in force will be affected.

Potential impact

Currently, where allegations of discrimination and/or harassment have been made, settlement is often a common goal for the complainant and the employer. Both can be concerned about the prospect of being involved in a public hearing, particularly given the often-sensitive subject matter.

It is generally the norm that a settlement agreement will contain NDOs and will prevent the worker from speaking negatively about the employer going forward. This is often the main draw for the employer, in order to minimise reputational damage. Accordingly, if the proposed conditions on ‘excepted agreements’ are introduced, this may amount to an absolute barrier to settlement for some employers.

The conditions would apply not only to private settlement agreements, but those facilitated by ACAS (known as COT3 Agreements). COT3s currently benefit from being more straightforward than private settlement agreements and do not require the worker to take legal advice. Again, the changes may disincentivise employers, leaving an individual with a choice between a public hearing or no recourse at all.

Whilst the Government’s aims are commendable in theory, it will remain to be seen whether actual cultural change will be achieved by these changes or whether the legislation will simply push individuals towards otherwise unwanted litigation.

What can you do now?

We recommend reviewing your contracts of employment and staff policies to ensure that workers with concerns about harassment or discrimination are encouraged to report this internally, in a private forum. Similarly, you should ensure you have appropriate processes in place to investigate concerns and take effective action.

You may also wish to submit a response to the consultation, which is open until 8 July.

Various other consultations will be taking place as the Employment Rights Act 2025 phases in over 2026 and 2027. We are encouraging clients to participate as the responses will influence what changes are implemented. You can access those which are currently open here.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

]]>

Fiduciary duties in the Supreme Court: ‘Ad hoc’ duties & a flexible approach to assessing equitable compensation

Tue, 5 May 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:1af1317f-3329-4d63-971c-a89ab55a260f/as/ART-US00093.avif?assetname=ART-US00093.jpg

Article | 6 min read

Fiduciary duties in the Supreme Court

‘Ad hoc’ duties and a flexible approach to assessing equitable compensation

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Read on for our summary of the Supreme Court's judgment and the key takeaways for directors and insolvency practitioners.

Published: 5 May 2026

/content/dam/shoosmiths/lawyers/hayley-capani/profile

/content/dam/shoosmiths/lawyers/shelley-white/profile

false

/content/dam/shoosmiths/lawyers/claire-kershaw/profile

false

style

single-column-text

The Supreme Court’s decision in Mitchell & another v Sheikh Mohamed Bin Issa Al Jaber No 2, handed down towards the end of last year, provides important clarification around the circumstances in which commercial actors may owe – and breach – fiduciary duties, and how the remedy of equitable compensation may respond. In this article we consider the decision and the key takeaways for those involved in complex commercial and insolvency disputes, including how liquidators should approach the assessment of claims against directors and connected third parties.

Background

Sheikh Mohamed Al Jaber (the Sheikh) was a director of a BVI-incorporated company, MBI International & Partners Inc (MBI). In March 2009 MBI acquired c890,000 shares in another company associated with the Sheikh, JJW Inc. No payment was ever demanded or made for those shares. MBI was wound up in October 2011, at which point the Sheikh’s powers as a director of MBI came to an end.

In February 2016, however, and without the knowledge of MBI’s liquidator at the time, the Sheikh signed – purportedly for and on behalf of MBI as its director – undated share transfer forms for the transfer of the JJW Inc shares from MBI to another associated company, JJW Guernsey.

In July 2017, all JJW Inc’s assets and liabilities were then transferred to a further associated company, JJW UK. As a result, all the shares in JJW Inc, which JJW Guernsey had acquired from MBI in 2016, became worthless.

The proceedings

In 2019, MBI’s liquidator commenced proceedings pursuant to s.212 of the Insolvency Act 1986, including claims (i) that the 2016 share transfers were void, (ii) that in bringing about the 2016 share transfers, the Sheikh acted in breach of fiduciary duty or in breach of trust, and (iii) that JJW Guernsey was the knowing recipient of the shares.

At first instance the trial judge found in favour of MBI’s (new) liquidators on all three claims. As to the appropriate remedy, the judge held the liquidators were entitled to equitable compensation on a ‘substitutive’ basis. This was calculated as around EUR 67m, based on a pro rata proportion of JJW Inc’s total approximate value, attributable to the relevant shares, at the time of the 2016 share transfer.

The Sheikh and JJW Guernsey appealed to the Court of Appeal, which upheld the judge’s decision in relation to breach of fiduciary duty, but found that the liquidators had failed to establish any loss, on the basis that by the time of the trial the shares were worthless as a result of the 2017 transfer.

Both parties further appealed to the Supreme Court.

The Supreme Court’s decision

There were three key issues for the Supreme Court to determine:

Whether the Sheikh was in breach of fiduciary duty in effecting the 2016 share transfers
If so, whether MBI did not in any event suffer any financial loss, on the basis it acquired the shares in March 2009 subject to unpaid vendor’s liens
How any loss as may have been suffered should be calculated.

The Supreme Court (Lords Hodge, Briggs and Sales, with whom Lords Stephens and Richards agreed) dismissed the Sheikh’s appeals on the first two points and allowed the liquidators’ appeal on the third, effectively upholding the first instance decision.

In particular, the Supreme Court considered that:

1. Fiduciary duties can arise on an ‘ad hoc’ basis and are not confined to well established categories of relationship (such as a company and its director(s)). The necessary relationship of trust and confidence arises whenever one party undertakes, expressly or impliedly, to act in the interests of another. Equity will recognise such an undertaking even in circumstances where the alleged fiduciary has not made any conscious undertaking, or considered the interests of the person to whom they owe a duty, or indeed has acted contrary to that person’s interests.

In the present case, the fact that:

the Sheikh had no actual power – as he purported - to transact on behalf of MBI at the time of the share transfers
the shares were transferred to a company under his control rather than the Sheikh himself

did not prevent a finding that, in the circumstances, he owed and breached a fiduciary duty to MBI. There was also no reason why the single indivisible act of the Sheikh signing the share transfer forms could not both create, and constitute a breach of, a fiduciary duty.

2. As to whether there was an unpaid vendor’s lien in relation to the March 2009 transfers, the key question was whether there was a clear and manifest inference that the parties intended to exclude one. The relevant evidence must be closely related to the transaction but is not limited to the documents agreed by the parties.

Here, the evidence was very strong and compelling. The intention of the March 2009 transfers, which the Sheikh stood on both sides of, was to enable an initial public offering of the shares in JJW Inc. The existence of an unpaid vendor’s lien would have prevented the sale of the shares in the IPO, undermining the transfers’ commercial purpose and rationale.

3. While there is a general tendency in equity to assess quantum at the date of trial, and in common law at the date of breach, it was not necessary for the purposes of this appeal to examine the reasons for that divergence. It was common ground that, on the authorities concerned with equitable compensation, there was no fixed/inflexible rule as to the appropriate date to use. The question therefore was what was just and equitable as between the principal and the fiduciary, or the beneficiary and trustee. Where a fiduciary or trustee has:

misappropriated relevant property
the principal or beneficiary can prove that the property had value when it was misappropriated

they suffer an immediate loss of value.

If the fiduciary/trustee then wishes to rely on other events as having broken the chain of causation, the burden of proof lies squarely with the fiduciary/trustee. Any such events would be unlikely to qualify if the fiduciary was involved, unless there was a clear and convincing innocent explanation.

Here, the Sheikh could not rely on the 2017 transfer as breaking the chain of causation since he made no attempt to prove that – contrary to the evidence otherwise available – that he played no significant part in it. That being the case, the relevant assessment was the loss of the value of the shares to MBI, as principal, when they were misappropriated in 2016. It did not matter that the shares themselves retained their value following the misappropriation, until the 2017 transfer rendered them worthless (to anyone).

Key takeaways

This judgment in particular serves as an important caution to anyone involved with the affairs of a company that they may, purely by their conduct, assume a fiduciary duty to the company, and potentially face legal action in relation to any breach. This is regardless of whether or when they may have held any official post or otherwise expressly undertaken responsibility for certain functions.

Equally, those considering or pursuing claims against commercial actors will welcome the Supreme Court’s confirmation that the question of whether a fiduciary duty exists is not constrained by form or formalities. This is good news for officeholders (but something for directors to be aware of) as it is a helpful reminder that the Court will adopt a “common sense” approach to reviewing potential respondents to claims. It helps defeat technical arguments around formal job titles/ statutory roles that can be raised as a defence against alleged malfeasant acts.

The clarification that a fiduciary will generally not (absent an innocent explanation) be able to rely on supervening events as breaking the chain of causation if he/she “had a hand in them” is also good news as it widens the potential avenues of recovery; as does the flexible approach to assessing equitable compensation.

This is one of four significant judgments concerned with fiduciary duties handed down by the Supreme Court in 2025 (the others being Rukhadze in March, Stevens in July and Hopcraft in August). While each has naturally been concerned with different specific points of law, the relatively high number of them reaching the Supreme Court in quick succession is undoubtedly notable. Whilst these judgments between them reaffirm various long-established principles (with many authorities cited dating to the 1800s), they also contain certain developments, demonstrating the flexibility of English common law to adopt to more modern-day commercial scenarios and disputes.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

Trade marking the tune: Taylor Swift strikes a chord against AI copycats

Tue, 5 May 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:a8933f99-26b0-40c9-a6b8-0466432a965c/as/ART-u2114277519_Create_images_that_reflect_a_global_outlook._They_fd2a8779-a779-47d7-9bd8-b074b21b5b2c_1.avif?assetname=ART-u2114277519_Create_images_that_reflect_a_global_outlook._They_fd2a8779-a779-47d7-9bd8-b074b21b5b2c_1.jpg

Brand interchange | 3 min read

Trade marking the tune

Taylor Swift strikes a chord against AI copycats

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Online clips of famous faces are now so convincingly manipulated that it can be hard to tell what’s real and what’s fake.

Published: 5 May 2026
Authors: Nicky Jenkins

/content/dam/shoosmiths/lawyers/nicky-jenkins/profile

false

style

single-column-text

Generative AI has become alarmingly good at copying not just how people look, but how they sound and when your voice, face or name is your brand, that’s a pretty big problem.

Trade mark law has become an unlikely but increasingly popular weapon in celebrities’ growing arsenal against AI misuse.

Taylor Swift: from pop powerhouse to trade mark trailblazer

Taylor Swift is the latest, and arguably highest‑profile celebrity to take this route. Just a few days ago, Swift filed three trade mark applications in the US covering two short voice clips: “Hey, it’s Taylor” and “Hey, it’s Taylor Swift”, together with a specific on‑stage image of her holding a pink guitar during her Eras Tour.

At first glance, this might seem a little strange. After all, Swift already has copyright over her music and further protection under publicity and image rights. But the problem with AI is that it doesn’t always copy existing material. Instead, it generates something new that just happens to sound or look uncannily like the original.

Taylor Swift’s filings appear designed to tackle exactly this gap, giving her grounds to challenge content that is “confusingly similar” to her voice or image, even if it isn’t a direct copy of any particular song or photo.

Given the number of AI‑generated deepfakes involving Taylor Swift in recent years, including fake product endorsements, explicit imagery and even fabricated political endorsements, it’s not hard to see why she might want another layer of legal protection.

Sound marks: no longer just for lions and chimes

Iconic examples such as MGM’s lion roar and NBC’s familiar chimes have long been registered as trade marks in the US, and UK trade mark law has also expressly recognised sound marks for many years. What is new, however, is applying that concept to a human voice.

Taylor Swift’s filings are a good example of this shift. Rather than trying to register her entire singing voice (a much trickier proposition), the filings focus on short, identifiable spoken phrases used in promotional contexts. These are exactly the sorts of clips that are easily repurposed by AI tools for adverts, chatbots or fake announcements. They also represent the sorts of uses that trade mark law is particularly well‑suited to police.

This reflects trade mark law being used creatively to address a problem it was not originally designed to solve, but one it may now be particularly well suited to

Matthew McConaughey: “Alright, alright, alright” goes legal

Taylor Swift isn’t alone. Earlier this year, Matthew McConaughey confirmed that he had secured multiple US trade marks covering his voice, image and crucially, his instantly recognisable catchphrase, “Alright, alright, alright!”. That phrase has been associated with McConaughey since Dazed and Confused in 1993, but in the age of AI, it’s also ripe for misuse. Deepfake audio can drop it into adverts, videos or games that have absolutely nothing to do with the actor, and may even cut across brands he’d never endorse.

By registering that sound and associated material as trade marks, McConaughey has drawn a clear legal line around what can, and can’t, be used with his permission. Or, as he reportedly put it, creating a “clear perimeter around ownership” in an AI‑driven world.

Why trade marks, and why now?

So why are stars turning to trade marks rather than relying on existing image and publicity rights?

One big reason is enforcement. Trade mark law is well‑established, commercially focused and crucially, designed to deal with confusion in the marketplace. If consumers might reasonably think a product, service or piece of content is connected with a particular celebrity, trade marks can be a powerful tool to stop it.

AI has made “confusion” much easier to create at scale. A single model can churn out thousands of look‑alike videos or sound‑alike audio clips in minutes, often without copying any one protected work directly. Trade marks shift the focus away from copying, and onto misrepresentation.

There’s also a signalling element. High‑profile filings by figures like Swift and McConaughey send a message to platforms, brands and AI developers: this territory is being staked.

A trend that’s only just beginning

Most of these recent filings are US only, and they won’t magically stop AI misuse worldwide. But they do suggest a growing trend. We might expect more actors, musicians and public figures to follow suit, especially those whose voices or appearances are commercially valuable beyond traditional music and film roles.

For now, trade mark law is being asked to do something new: protect personality, identity and authenticity in a digital world where imitation has never been easier. Whether courts fully embrace that role remains to be seen.

The message from celebrities is becoming clear. In the age of AI, names, faces and voices are no longer just personal attributes; they operate as commercial assets. Trade marks are proving to be one of the more effective ways of protecting them.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

Salone del Mobile: Protecting the IP in design inspiration

Thu, 23 Apr 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:883de93c-81c2-4145-89e2-38bebf36035a/as/ART-US00103.avif?assetname=ART-US00103.jpg

Brand interchange | 4 min read

Salone del Mobile: Protecting the IP in design inspiration

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

This week marks Salone del Mobile, when the global design world gathers in Milan for the annual design and furniture fair.

Published: 23 April 2026
Authors: Rob Sandercombe

/content/dam/shoosmiths/lawyers/rob-sandercombe/profile

false

style

single-column-text

Salone is a celebration of design, creativity and manufacturing, showcasing some exciting collaborations. The main Fiera encompasses more than 1,900 exhibitors from 32 countries, while the wider city hosts an array of different events, exhibitions and presentations from global brands and independent designers alike. In this article, we consider what intellectual property protection is available to designers and brands and discuss some of the issues they should consider when entering into collaborations.

What should designers and brands protect — and how?

For designers and brands in the UK, the following intellectual property protection (which sits across four overlapping regimes) may be relevant:

unregistered design rights (UK): which arise automatically, do not require registration, and post-Brexit, fall into 2 main categories:
- UK Unregistered Design Rights (UDRs): are created under the Copyright, Designs and Patents Act 1988 (CDPA 1988) and protect the shape and configuration of 3D articles (including internal or structural features), but do not protect surface decoration or ornamentation. Protection lasts for the earlier of 10 years from first marketing or 15 years from creation. Importantly though, whichever term applies, in the final five years the right becomes subject to a “licence of right”, meaning the owner must allow licences on fair and reasonable terms; and
- Supplementary Unregistered Designs (SUDs): protect the appearance of all or part of a product, including lines, contours, colours, shape, texture, materials and ornamentation (in both 2D and 3D). Protection lasts for three years but is established only by first disclosure in the UK (which, as discussed below, can prove problematic if the first unveiling of a design takes place at Salone).
registered design rights (UK): protect the appearance of the whole or part of a product, resulting from its lines, contours, colours, shape, texture, materials or ornamentation. To qualify for registration, a design must be new and have individual character. An application must generally be made within a 12‑month grace period following first disclosure, regardless of where the first disclosure takes place (so a first unveiling at Salone can still be followed by a UK application within 12 months). Protection lasts for five years from registration and can be renewed every five years, up to a maximum term of 25 years. In practice, registered designs are typically stronger and easier to enforce than unregistered rights and are therefore recommended as a front-line protection for brands and designers when a design has long‑term commercial potential.

copyright: where a design is determined to be a work of artistic craftsmanship, it may qualify for copyright protection lasting 70 years after the author or designer’s death. However, because copyright is not a registrable right, its existence is ultimately determined by the courts based on the specific facts of the case. A notable example where copyright was recognised is the Eames DSW chair, following the CJEU’s decision in Kwantum v Vitra (24 October 2024). By contrast, the WaterRower decision (WaterRower Ltd v Liking Ltd (t/a Topiom) [2024] EWHC 2806 (IPEC)) illustrates the limits of copyright in design where, despite its aesthetic appeal, the WaterRower was held to not qualify as a work of artistic craftsmanship and therefore did not benefit from copyright protection under UK law.

patents: protect technical inventions (how something works, rather than how it looks) and can offer protection for up to 20 years from filing, subject to annual renewal fees. Because patent applications generally must be filed before first disclosure, they require planning well in advance of any public launch. Notable examples where patent protection has played a role include Anglepoise, whose original spring‑balance mechanism was protected by patents, and Achille and Pier Giacomo Castiglioni’s Arco lamp, which was initially protected by patents before later being recognised as capable of benefiting from copyright protection following Flos v Semeraro (CJEU, 2011).

Designers should also consider registering their name, or studio name, as a trade mark. This is commonplace in the fashion industry but perhaps less well appreciated in the design community. A designer’s name, or studio name, is their brand, and registration protects their position. It also provides designers with a clear legal footing when entering into collaborations, as well as offering certainty to brands.

Collaborations

Eagerly anticipated collaborations this Salone include the launch of The Eames Pavilion System developed by the Eames Office in collaboration with Kettal and exhibited at Triennale Milano from 20 April to 10 May; the Radical Home by Italian Radical Design, which combines reissues from Gufram and Memphis with new designs by Faye Toogood and Objects of Common Interest for Meritalia; and Philippe Malouin’s reimagining of Alessi’s iconic moka coffee maker.

The best collaborations are greater than the sum of their parts, enabling brands to benefit from cutting‑edge designs and the creative direction and positioning of star designers, while designers benefit from the prestige of working with globally recognised brands, access to specialist materials and production expertise, and a platform to present their creations to a global audience.

However, each collaboration raises a familiar, but often under-examined, set of questions: what each party brings to the table (their “background IP”); who owns any intellectual property created through the collaboration (the “foreground IP”); how the designer is credited; who can use what, where and for how long; and how the commercial value of the collaboration is shared between the parties.

From the designer’s perspective, it is essential that their pre-existing design language, aesthetic approach and underlying design know-how are protected, and that they are adequately paid, not only for the initial work, but also for the promotion and commercialisation of the collaborative designs. This is where the agreement should strike an optimal balance of upfront fees and ongoing royalties, as part of a long‑term strategy to consolidate and accumulate value across a broader portfolio of work.

From the brand’s perspective, it is equally important that its brand identity, brand codes, iconic styles, logos, emblems and colourways are protected, and that it secures the rights necessary to market the collaborative creation for a sufficient term, territory and scope of use to support a sustainable long-term business model.

Working positively together, designers and brands can focus and invest in a smaller number of partnerships that offer greater creative and strategic alignment and create more long-term value as a result. However, this requires planning and foresight, not only to identify the right partners, but also to ensure that commercial terms and IP ownership are agreed at the outset, and that the contract is signed before work commences. This is particularly important as, absent an agreement to the contrary, copyright law provides that commissioned work will vest in the designer rather than the commissioning brand, which could run contrary to the commercial assumptions on which the collaboration is based.

Conclusion

Salone offers designers and brands a unique opportunity to showcase their designs to a growing worldwide audience. However, to make the most of this opportunity, we recommend considering the following key points:

create evidence packs for designs so that you can demonstrate when a design existed and what it comprised
consider first disclosure. SUD protection requires first disclosure in the UK, so designers and brands should consider coordinating UK-first press releases or a simultaneous UK presentation to ensure that novelty is preserved
where designs have long-term commercial potential, consider registered designs as early as possible, and in any event within the 12-month grace period following first disclosure
where designs incorporate technical innovation, consider whether patent protection may be available, remembering that patent applications generally must be filed before first disclosure
for legacy designs approaching the end of their 25-year registered design term, it may be worth assessing whether copyright could offer longer-term protection, depending on the nature of the design and how it has been created and commercialised
where product shapes or features have become so well known that they function as a badge of origin, consider whether registration as a trademark may offer an opportunity for long‑term protection, potentially lasting in perpetuity through successive, renewable 10‑year terms
ensure that agreements are in place that cover all key aspects of collaborations before the design work begins.

By addressing these questions as early as possible in the design process, designers and brands can make IP a fundamental part of their design strategy, helping them to identify complementary creative and strategic partners, reach agreements which are mutually beneficial, protect their respective intellectual property and maximise its value, and in doing so turn Salone from a once-a-year moment of exposure into a key part of a long‑term design legacy.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

TAQA appeal ruling: Why directors must rethink intra-group deals

Wed, 22 Apr 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:e1709fc0-52ee-490a-85c0-80a90ab89e6d/as/ART-US00092-(6).avif?assetname=ART-US00092+%286%29.jpg

Article | 3 min read

TAQA appeal ruling

Why directors must rethink intra-group deals

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The Court of Appeal’s recent judgment in TAQA Bratani Limited [2025] EWCA Civ 1669 (“TAQA”) has reshaped the risk landscape for directors operating within corporate group structures, particularly complex ones.

Published: 22 April 2026
Authors: Lauren Moroney

/content/dam/shoosmiths/lawyers/lauren-moroney/profile

/content/dam/shoosmiths/lawyers/hannah-field/profile

false

/content/dam/shoosmiths/lawyers/hayley-capani/profile

false

style

single-column-text

The Court of Appeal’s recent judgment in TAQA Bratani Limited [2025] EWCA Civ 1669 (“TAQA”) has reshaped the risk landscape for directors operating within corporate group structures, particularly complex ones. While the case arose in the context of transactions at an undervalue, governed by s.238 of the Insolvency Act 1986 (“IA 1986”), the implications of the judgment stretch far beyond distressed companies.

For directors, particularly of large corporates, and especially those who also act as nominee directors for group subsidiaries, TAQA should prompt a re-assessment of the approach to intra-group transactions.

The 238(5) defence

Under Section 238(5) IA 1986, if company directors can satisfy the court that they entered into a transaction at an undervalue a) in good faith and for the purpose of carrying on business, and b) that at the time of the transaction there were reasonable grounds for believing the transaction would benefit the company, then they will avoid an order against them.

The TAQA judgment has narrowed the operation of the s.238(5) defence. The Court of Appeal made it clear that generalised reference to and reliance on, for example, wider group strategy, commercial purpose, or overall deal rationale, will no longer satisfy the test.

Instead, directors must show that each step was for the benefit of the company itself, not merely advantageous to the parent company or the group as a whole. This significantly reduces the room for manoeuvre when defending value movements within a corporate structure.

Single steps can be the “transaction”

TAQA confirmed that, for the purposes of s.238, a single step within a multi‑stage matter can itself comprise the relevant “transaction”. Even if a transfer or restructuring move is embedded within a much larger commercial deal, that broader context will not necessarily save an individual component that strips value from a company.

In essence: every step matters. Directors must be able to justify that each discrete stage of a deal benefits the company on a standalone basis. If one step disadvantages a company, directors can no longer rely on the fact that it sits within an otherwise coherent or beneficial wider transaction. TAQA represents a significant tightening of the analytical lens applied to intra‑group arrangements.

Particular steps directors should be mindful of include, among other things: intra‑group transfers of assets, assumption of liabilities for group benefit, dividend payments supporting deal execution, and steps taken as part of broader restructurings.

Why TAQA matters for directors of large corporates

In reality, most major corporates are unlikely to suffer an insolvency event. However, that is not the real point here. Many large corporations have extensive subsidiary networks, including dormant entities, special‑purpose subsidiaries and newly acquired businesses. It is entirely foreseeable that one of these smaller, sometimes insufficiently monitored, subsidiaries could slip into financial difficulty long before the parent company ever would, and this is precisely where the risk emerges.

If you are a director of a major corporate and you also act as a nominee director on its subsidiaries, following the TAQA ruling, you must ensure particular care is taken and the subsidiary in question is the focus of your decision-making.

Nominee directors often find themselves slightly detached from day‑to‑day operations of smaller subsidiaries, and therefore easily slip into the mindset of assuming that any value transfers within the group are innocuous because it benefits the parent company or is part of a wider deal – post TAQA, that mindset is no longer safe.

The danger zone for nominee directors

The TAQA judgment provides a clear warning: directors cannot take their eyes off the ball simply because an entity is small or non‑core. If a subsidiary becomes insolvent, office‑holders (and the court, should matters proceed to litigation) will examine historic transactions at an undervalue with renewed strictness in light of TAQA.

If one discrete step left the subsidiary worse off, the fact that it advanced a broader corporate strategy is no longer a viable defence, and directors who authorised any such step will face far greater scrutiny of their decision‑making.

A renewed governance focus

For large corporates with extensive group structures, TAQA should prompt a renewed governance focus. The safest path should involve:

documenting the entity‑specific benefit of each step and maintaining careful records evidencing independent judgment at subsidiary level
ensuring nominee directors genuinely understand what is happening within their subsidiaries (and that it is happening for the benefit of the subsidiary)
avoiding reliance on implicit group benefit or assumed alignment of interests.

The key takeaway is that TAQA reinforces that each company is its own legal person and must be treated as such by directors – especially when value flows across the corporate structure.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

Competition litigation funding: More, but more complicated

Thu, 16 Apr 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:dccb4de4-4407-4eb2-8a37-e7630eaf9182/as/ART-US00099.avif?assetname=ART-US00099.jpg

Article | 1 min read

Competition litigation funding: More, but more complicated

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Recent UK court rulings and government reforms have brought major changes to litigation funding, addressing challenges after the July 2023 PACCAR judgment.

Published: 16 April 2026
Authors: Kiran Desai

/content/dam/shoosmiths/lawyers/kiran-desai/profile

false

style

single-column-text

The PACCAR judgment was a significant issue for funders, with one funder identifying that for arbitration matters the company ‘no longer [names] London as an arbitral seat’, with alternatives apparently being Singapore, Paris and New York. However, pragmatic judicial decisions seem to have calmed the waters and the dominant response by funders to the government’s announcement in December 2025 was one of relief.

For funders, the proposed legislative changes have not only restored confidence but also opened new avenues for growth and investment. Statutory clarity offers increased security for those underwriting litigation, making the UK market particularly attractive for institutional capital. This development is likely to encourage funders to expand their portfolios and consider new strategies within the sector.

One legal market commentary identifies that ‘the "Market Heating" effect is immediate. The 2026 legislation doesn't just return the market to 2023; it supercharges it. By providing statutory clarity, the government has essentially de-risked the asset class for institutional investors and pension funds’.

For the full description of these and other judicial developments affecting litigation funding, a description of the government’s announcement, and a commentary on the current and prospective situation for litigation funders, see the article published in the latest edition of European Competition and Regulatory Review, published by Lexxion.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

Supreme Court confirms no limitation period for unfair prejudice petitions

Fri, 10 Apr 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:a9508723-118b-4b46-9180-18dd35ffed30/as/ART-u2114277519_Create_images_that_reflect_a_global_outlook._They_fc8a6def-de81-4eff-953d-3ceb1c1234df_3.avif?assetname=ART-u2114277519_Create_images_that_reflect_a_global_outlook._They_fc8a6def-de81-4eff-953d-3ceb1c1234df_3.jpg

Article | 6 min read

Supreme Court: No time limit for unfair prejudice claims

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The Supreme Court has confirmed that no statutory limitation period applies to unfair prejudice petitions under section 994 of the Companies Act 2006. Delay in presenting a petition will however remain a significant factor in the exercise of the Court’s discretion as to whether to grant relief.

Published: 10 April 2026
Authors: Hannah Field

/content/dam/shoosmiths/lawyers/hannah-field/profile

/content/dam/shoosmiths/lawyers/fiona-thornton/profile

false

/content/dam/shoosmiths/lawyers/claire-kershaw/profile

false

true

style

single-column-text

In THG Plc v Zedra Trust Company (Jersey) Limited, the Court (by a 4-1 majority) held that unfair prejudice petitions are not subject to the limitation periods contained in the Limitation Act 1980. The decision overturns the Court of Appeal’s 2024 ruling and reflects what had long been the received wisdom among practitioners (albeit without any earlier binding appellate authority to that effect).

The judgment is significant for shareholders, directors and companies alike. It confirms that historic conduct may still be challenged through an unfair prejudice petition, even where the events in question took place many years earlier.

The decision also has potential implications for the limitation analysis in other types of claim similarly brought pursuant to a statute, but where the statute itself does not create or impose an obligation which the claimant is seeking to enforce.

The background

The appeal arose from an unfair prejudice petition presented in 2019 by a minority shareholder. The petitioner later sought to amend its case to include allegations arising out of a 2016 bonus share issue from which it said it had been wrongly excluded.

The respondent company argued that the new complaint was time-barred under the Limitation Act 1980, either:

as an “action upon a speciality” subject to a 12-year limitation period under section 8; or
as an “action to recover a sum recoverable by virtue of an enactment” subject to a six-year limitation period under section 9.

At first instance the High Court rejected both arguments, relying on the 2022 Court of Appeal decision in Cherry Hill Skip Hire (where the point was common ground and so not fully argued). The Court of Appeal subsequently reversed the High Court decision, finding that petitions fall in principle within both sections 8 and 9 of the 1980 Act, so are subject to a limitation period of 12 years unless a monetary order is sought in which case the six-year period applies.

The Supreme Court has now overturned the Court of Appeal’s decision, finding that neither section 8 nor 9 of the 1980 Act apply.

Why the Limitation Act does not apply

Section 8 - “Action upon a speciality”

The majority held that an action upon a speciality is essentially an action to enforce an obligation created by a deed or statute.

Sections 994 to 996 of the Companies Act 2006 do not impose obligations on directors or shareholders. Instead, they give the court the power to grant relief where a company’s affairs have been conducted in a way that is unfairly prejudicial to the interests of its shareholders.

The statute creates a remedy rather than an enforceable obligation; therefore, an unfair prejudice petition is not an action upon a speciality. The same reasoning may arguably apply to claims brought pursuant to certain other statutes.

Section 9 - Recovery of a statutory sum

The Court also rejected the argument that a six-year limitation period should apply where the petitioner seeks monetary relief.

Under section 996, the court has very broad discretion to grant “such order as it thinks fit” to remedy unfair prejudice. This could include ordering the purchase of shares, regulating the company’s affairs or requiring the payment of compensation.

Even where monetary relief is sought, any obligation to pay arises only because of the court’s discretionary order, not directly by virtue of the statute itself. For that reason, an unfair prejudice petition is not an action to recover a sum “recoverable by virtue of an enactment”.

The majority also considered it unprincipled and impracticable for limitation to depend on the form of relief ultimately granted.

Delay still matters

The absence of a statutory limitation period does not mean claims can be brought without consequence after long periods of inactivity.

The Supreme Court emphasised that delay remains highly relevant. Courts can take into account factors such as:

whether the petitioner knew of the conduct complained of but delayed in acting;
whether the delay has caused evidential, commercial or third-party prejudice; and
whether granting relief would be inequitable in the circumstances.

In other words, while there is no statutory time bar, delay remains a powerful discretionary factor.

Why the decision matters

The ruling reinforces the unique nature of unfair prejudice petitions, which are designed to provide flexible relief in shareholder disputes rather than enforce a defined statutory right.

For companies and majority shareholders, the practical message is clear: historic acts can still be scrutinised, particularly where they form part of a wider pattern of conduct, although any delay will still be relevant to the Court’s decision of whether (and if so how) to grant relief.

At the same time, the Supreme Court noted that the Law Commission previously recommended introducing a limitation period, suggesting a three-year period running from when the claimant knew (or ought to have known) of the relevant conduct. Whether Parliament revisits that recommendation remains to be seen.

Broader practical implications

Unfair prejudice petitions remain one of the most powerful tools available to minority shareholders. Section 994 of the Companies Act 2006 is not intended to draw hard and fast lines, and the range of conduct which can amount to unfair prejudice, if the circumstances warrant it, is extremely broad.

Disputes are often fact intensive and years of allegations and parallel accusations of wrongdoing or fraud can lead to costly and protracted trials. The most common remedy is an order requiring the majority to purchase the petitioner’s shares at a court-determined price, which can carry significant financial consequences.

For directors, the risks are particularly acute. Directors can face personal liability as, with very limited exceptions, directors are not permitted to use company funds or assets to defend an unfair prejudice petition. In fact, doing so could in itself constitute unfair prejudice.

Failing to act swiftly on being served with a petition risks default judgment being entered, while the financial and reputational impact of an active claim can harm a company’s governance and relationships with stakeholders. To safeguard your business and reputation, ensure unfair prejudice claims are a risk you remain cognisant of in day-to-day decision making and governance.

If you are concerned about potential claims or are facing allegations of unfair prejudice, seeking expert legal advice is essential. At Shoosmiths, we work proactively with businesses to help them navigate shareholder disputes, clarify their obligations, and mitigate risks. For tailored guidance on unfair prejudice claims or to discuss your specific circumstances, please contact our Disputes team at Shoosmiths.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

From Kitchen to Cask: Why TV chef James Martin’s trade mark bid fell flat

Mon, 30 Mar 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:dee78961-8713-4ab5-9b02-9ecec5ed3efa/as/ART-u2114277519_Interesting_angles_and_close-up_views_enable_the__9e637f8d-d182-44d3-80f9-adb685ea77c6_0.avif?assetname=ART-u2114277519_Interesting_angles_and_close-up_views_enable_the__9e637f8d-d182-44d3-80f9-adb685ea77c6_0.jpg

Brand interchange | 4 min read

Why James Martin’s trade mark bid failed

A look at the TV chef’s attempt to protect the ‘From Kitchen to Cask’ brand, and the key legal reasons his trade mark application was rejected.

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Decision: Macdonald & Muir Limited v James Martin (Series of Two) (BL O/1200/25) Court: UK Intellectual Property Office (Trade marks)
Hearing officer: L. Nicholas
Decision link: https://www.ipo.gov.uk/t-challenge-decision-results/o120025.pdf
Key issues: Identity of marks, likelihood of confusion, distinctiveness of earlier mark, evidence of genuine use and specification clarity

Contested marks

JAMES MARTIN

JAMES MARTIN'S

(SERIES OF 2)

Earlier marks

(The first earlier registration)

JAMES MARTIN's
(The second earlier registration)

JAMES MARTIN

Published: 30 March 2026
Authors: Anastasia Fowle

/content/dam/shoosmiths/lawyers/anastasia-fowle/profile

false

style

single-column-text

Introduction

Celebrity chef James Martin tried to expand his brand from TV and cookbooks into the drinks market. To do that, he applied to trade mark the names “James Martin” and “James Martin’s” for a range of alcoholic and non alcoholic beverages. This made commercial sense given his existing wine ventures, but it placed him directly against an established whisky brand that had been using “James Martin’s” for well over a century.

That brand belongs to Macdonald & Muir, the company behind Glenmorangie and Ardbeg. Not only does their “James Martin’s” whisky date back to the 19th century, but they also hold registered trade mark rights dating from 1998 and were able to show that the whisky is still very much in ongoing commercial use.

Why was the application opposed?

Macdonald & Muir argued that:

They already owned the mark “James Martin’s” for whisky.
The chef’s proposed marks were identical to theirs.
Allowing his trade marks would confuse consumers, especially because both parties operate in the drinks sector.
Their brand still has a real presence in the market which was shown through detailed bottling records, invoices and export evidence confirming more than 11,000 bottles produced and sold between 2017 and 2022.

In short, they showed that this wasn’t just a “historic” brand but an actively used one.

What the IPO decided

After a full hearing in January 2025, the UK IPO ruled in favour of Macdonald & Muir.

The decision came down to a few key findings:

1. the marks were identical (word for word).

2. the earlier whisky brand had inherent distinctiveness, strengthened by its long commercial history.

3. even though James Martin had applied for a wider range of drinks, many were similar enough to whisky to matter.

4. because the marks were identical, the likelihood of confusion was high and consumers could very easily assume that James Martin’s drinks came from or were related to the whisky brand.

As a result, the IPO refused the chef’s application and ordered him to pay £1,900 towards the opponent’s legal costs.

Why heritage matters in the drinks industry

One important element of the ruling was the strength of Macdonald & Muir’s legacy brand. Although whisky production often involves small batch releases and long ageing periods, the IPO accepted that lower volumes do not undermine continued commercial activity. What matters is whether the brand remains present in the market and recognisable to consumers.

This case illustrates a broader point: heritage spirits brands carry significant legal protection, even when production levels are modest.

Why broad specifications can backfire

In this case, the applicant’s specification covered a very wide range of beverages which included alcoholic, non alcoholic, low alcohol, spirits, beers, wines, and cocktails. Because the list was so broad, the Hearing Officer was required to:

compare the applicant’s long list of goods against the opponent’s single item (“whisky”);
find similarity even where it was low, simply because the goods fell within the wider drinks market.
conclude that identical marks even low similarity was enough to refuse registration.

A wide, catch all specification increases the chance of overlap with earlier rights which includes overlap that may only be “low similarity” but still sufficient to cause refusal. Had the specification been narrower, more commercially focused, and properly delimited, the conflict with the opponent’s whisky mark might have been reduced or avoided.

How this compares with Jo Malone and Elizabeth Emanuel

The outcome in James Martin’s case sits interestingly beside disputes involving designers such as Jo Malone and Elizabeth Emanuel, both of which turn on the commercialisation of personal names.

In those cases, the courts looked at what happens when a brand that uses someone’s name has been sold or transferred, and whether the original creator is still allowed to use their own name without infringing the brand they once helped to build.

Jo Malone was prevented from using “Jo Malone” for new fragrance ventures after selling her business to Estée Lauder, because the name had become a trade mark owned by the purchaser. This issue has raised its head again in only the last few days as it appears that Estee Lauder has issued proceedings against Ms Malone for use of her name;
Elizabeth Emanuel, the designer behind Princess Diana’s wedding dress, similarly lost the ability to trade under “Elizabeth Emanuel” once the brand and goodwill were sold.

These cases highlight a principle: personal names can become commercial assets entirely separate from the individual.

By contrast, James Martin’s dispute arose at the registration stage, not following a sale of goodwill. Jo Malone and Emanuel often appear as defences to infringement raised by individuals seeking to justify continued use of their own name. They are not typically deployed as a basis for obtaining a new registration.

Here, the obstacle was more fundamental: Macdonald & Muir already owned “James Martin’s” as a longstanding whisky brand. The chef’s mark was legally identical to an earlier right, leaving no room for successful registration.

Key lessons for brand owners

1. A famous name isn’t a free pass

Even celebrities cannot override pre-existing rights. Earlier trade marks in particular historic ones will always carry significant weight.

2. Evidence is everything

Invoices, bottling records, export logs and photographs were central to Macdonald & Muir’s success. In trade mark disputes, good evidence wins cases.

3. Confusion is assessed holistically

Where marks are identical, the threshold for similarity of goods is lower. Distinctiveness and legacy strengthen the opponent’s position.

4. Draft carefully and completely

Missing schedules or vague specifications can undermine an otherwise strong application.

Conclusion

James Martin’s failed bid to trade mark his name serves as a clear reminder that heritage brands carry serious legal weight, especially in sectors built on long standing identity and consumer recognition.

For any business expanding into a new market:

carry out thorough clearance searches,
gather strong evidence of use where relevant, and
ensure trade mark specifications are drafted with absolute clarity.

In industries driven by history and reputation, a brand’s past isn’t just part of its story, it’s a major legal advantage.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

Clarks v Trek: The co‑existence agreement that went off‑road

Mon, 30 Mar 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:63e5c79e-b820-465e-9ff6-a425ee0a11a0/as/ART-u2114277519_create_high_end_photography_showing_cinematic_aer_89f71a3e-f88e-4dfb-9e64-65301c66e3dd_1.avif?assetname=ART-u2114277519_create_high_end_photography_showing_cinematic_aer_89f71a3e-f88e-4dfb-9e64-65301c66e3dd_1.jpg

Brand interchange | 4 min read

Clarks v Trek: The co‑existence agreement that went off‑road

The High Court has considered the scope & effect of a long standing trade mark co-existence agreement

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Decision: C. & J. Clark International Ltd v Trek Bicycle Corp[2026] EWHC 659 (ChD) Court: High Court, Intellectual Property List
Judge: Ian Karet OBE
Decision: Here
Issue: Registered Trade Mark Co-Existence Agreements

Published: 13 April 2026
Authors: Eloise Ryan

/content/dam/shoosmiths/lawyers/eloise-ryan/profile

false

style

single-column-text

Introduction

In C. & J. Clark International Ltd v Trek Bicycle Corp, the High Court has considered the scope and effect of a long‑standing trade mark co-existence agreement and its interaction with claims for trade mark infringement, invalidity and non‑use, in the context of the parties’ evolving commercial activities in footwear and sports goods. The case provides detailed guidance on contractual construction in trade mark co-existence agreements.

Background

Clarks is a well‑known UK footwear manufacturer, having sold shoes under its TREK mark, including DESERT TREK, for over fifty years. Trek is best known for bicycles and cycling equipment, having used its TREK mark in relation to cycling clothing for decades.

The dispute centred on a global co-existence agreement entered into in 2001. The agreement was intended to preserve the status quo between the parties, its key features including:

Trek was permitted to use TREK for cycling‑related clothing, “but not including footwear” (clause 6 of the agreement)
Clarks was permitted to use and register TREK for footwear, clothing and headgear, provided it did not use the mark on goods” adapted for wear when cycling, commemorating cycling events or participating in sports or fitness’” (clause 3 of the agreement)
each party agreed that the agreement should “bind and shall inure to the benefit of the respective affiliates, licencees, assigns and successors in business of the parties hereto” (clause 14)
each party agreed not to challenge the other’s registrations within the agreed fields (clauses 1, 2, 4 and 5 of the agreement)
the agreement was worldwide, unlimited in time, and binding on affiliates and licensees (clauses 11 and 14 of the agreement)

Issues

Since the agreement was concluded, each party had gradually encroached into the other’s field. By trial, the court identified the following principal issues to be determined:

whether Trek breached clause 6 of the agreement and infringed Clarks’ registered trade marks under sections 10(1), 10(2) and 10(3) Trade Marks Act (“TMA”) by selling TREK‑branded cycling shoes and insoles
whether Clarks breached clause 3 of the agreement by selling TREK‑branded footwear adapted for sports or fitness
whether Clarks consented to or waived its rights in relation to Trek’s conduct in discussions between the parties in 2018
whether Trek was in breach of clause 6 of the agreement as a result of Lidl’s sale of LIDL-TREK shoes
whether Trek’s UK trade marks covering footwear were invalid under sections 47 TMA
whether Clarks’ TREK registrations should be partially revoked for non‑use under section 46 TMA

Decision

Applying Wood v Capita [2017] UKSC 24 and Sara & Hossein Holdings v Blacks Outdoor [2023] UKSC 2, the judge emphasised that co-existence agreements must be interpreted objectively and as a whole. The purpose of the agreement was to preserve a clear commercial divide between the parties’ footwear and cycling businesses. Addressing each of the issues above:

the court rejected Trek’s argument that the phrase “but not including footwear” did not prohibit sales of shoes. “Footwear” was given its ordinary meaning, covering shoes and boots, including specialist cycling shoes. The agreement did not distinguish between different categories of shoes. It followed that the court held that Trek infringed Clarks’ registered TREK marks by selling cycling shoes under section 10(1) and 10(2) TMA. On section 10(3), although Clarks’ marks were found to have a reputation, the court held there was no unfair advantage, dilution or tarnishment. Trek was developing its own cycling brand rather than riding on Clarks’ coat‑tails
the court held that the phrase “adapted for wear when cycling, commemorating cycling events or participating in sports or fitness” in clause 3 of the agreement meant “suitable for”, without requiring specialist technical adaptations. Whether footwear fell within that description depended on factors such as marketing, design briefs, materials, appearance and consumer messaging
as to consent or waiver, Trek argued that a 2018 meeting amounted to Clarks consenting to Trek’s use of TREK on cycling shoes. The court rejected this: at most Clarks’ representative had suggested that the issue “should not be a problem”, which fell short of clear consent, particularly in light of the contract’s formality and global scope
with regard to Lidl’s sale of “Lidl‑Trek” trainers and slippers (in connection with the professional cycling team it sponsored with Trek), although Trek argued these were third‑party acts, the court held that Lidl was a licensee for the purposes of the agreement. As clause 14 of the agreement rendered Trek responsible for licensees’ acts, sales of Lidl‑Trek footwear therefore breached the agreement
turning to Trek’s allegation that Clarks breached the agreement by expanding the TREK brand into sports and fitness footwear, while the court conducted that legacy outdoor shoes such as Wave Trek were permitted, several newer “ATL TREK” models were found to be adapted for sports or fitness and therefore in breach. The court placed significant weight on Clarks’ internal product documents, marketing language and categorisation of shoes as “sports” or “sport active”
on validity and revocation of the trade marks, Trek’s counterclaim for partial revocation of Clarks’ TREK marks for non‑use failed. Clarks’ use on a wide range of footwear, including sports and fitness‑suitable shoes, was sufficient. Several Trek registrations covering footwear were declared invalid under section 47 TMA due to conflict with Clarks’ earlier marks. However, bad faith allegations against Trek were rejected. Filing applications covering footwear was not inconsistent with the agreement and did not fall within recognised categories of bad faith
Defences of consent, honest concurrent use and statutory acquiescence failed

Conclusion

Overall, the court concluded that:

Trek infringed Clarks’ trade marks under sections 10(1) and 10(2) TMA by selling TREK‑branded cycling shoes and insoles, but not section 10(3) as there was no unfair advantage, dilution or tarnishment
Trek breached the co-existence agreement both by selling TREK‑branded cycling shoes and through Lidl’s sales of team‑branded footwear
Clarks also breached the agreement by selling certain TREK shoes adapted for sports or fitness
Trek’s UK registrations covering footwear were invalid, while Clarks’ trade marks remained intact

Comment

The judgment provides three practical takeaways for those drafting co‑existence agreements:

define your “no‑go zone” precisely. “Sports,” “fitness,” and “footwear” sound obvious until the market evolves and athleisure makes everything “multi‑purpose.”
put variations in writing. If your position is “we agreed it over coffee in 2018,” expect the court to ask for the document trail.
don’t forget about licensees. If the agreement binds affiliates/licensees, your partner’s promotions can become your problem.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

Why fraud is reshaping resilience in financial services

Fri, 27 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:05f18c1a-e0e9-432e-842a-7ee8c01e0275/as/fintech.avif?assetname=fintech.jpg

Article | 4 min read

Why fraud is reshaping resilience in financial services

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Fraud has become the defining operational and regulatory risk for financial services. With authorised push payment scams surging, mandatory reimbursement tightening pressure, and Consumer Duty raising expectations, firms face a pivotal moment. Those who invest early in smarter monitoring, clearer communication and faster interventions won’t just reduce losses – they’ll strengthen trust.

Published: 27 March 2026
Authors: Daren Allen

/content/dam/shoosmiths/lawyers/daren-allen/profile

false

style

single-column-text

According to our annual Litigation Report, general counsel (GC) in financial services faced almost twice as many fraud related disputes (47%) as any other sector in the past year. And the risk isn’t easing. When GCs look three years ahead, fraud tops the list of expected disputes (63%), eclipsing even major concerns like tax and IP. It’s a clear warning: FS businesses are entering an era where fraud isn’t a peripheral threat. Instead, it’s the central battleground shaping regulatory scrutiny, operational resilience and customer trust.

Operational risk redefined

But what is driving the focus on fraud? Authorised push payment (APP) fraud now accounts for hundreds of millions in losses each year, with banks absorbing most of the cost upfront under the mandatory reimbursement regime. These scams don’t rely on complex system breaches. They rely on people. Criminals manipulate customers into sending money themselves, often convinced they’re responding to a trusted request or chasing a legitimate investment. The surge in cases has pushed APP fraud into the spotlight, drawing scrutiny from regulators, the media and the public. It is now firmly recognised as a core operational and regulatory risk for banks and payment providers, not just a criminal issue.

The stakes have grown even higher with the introduction of the mandatory reimbursement scheme. Banks must now repay most APP fraud victims at speed, with only narrow exceptions such as clear cases of gross negligence. The financial impact is significant, with losses mounting into the hundreds of millions. The operational pressure is equally intense: firms must assess and settle claims within extremely tight timelines, with a target for most cases to be resolved within five business days. This is a challenge that hits smaller institutions hardest as they race to match the capabilities of larger banks with established fraud infrastructure. The risk of system abuse adds another layer of complexity.

Regulation steps up

Perhaps unsurprisingly, regulators have responded decisively. The Financial Conduct Authority’s 2025-2030 strategy has made APP fraud a priority within its broader approach to financial crime, emphasising the need for robust systems, proactive monitoring and stronger customer protections. Its Consumer Duty raises the bar even further for how firms respond. It expects proactive protection – spotting unusual activity early, stepping in fast, and supporting customers with clarity and empathy throughout the process. It pushes firms to move beyond quick payment processing and towards behaviour that genuinely prevents harm: asking questions, offering warnings, and helping the moment fraud is suspected. In short, Consumer Duty makes active monitoring, timely intervention and meaningful support a regulatory expectation, not a nice to have.

A strategic opportunity

The message for financial services is clear: the firms that will thrive in this new landscape are the ones that treat fraud as a frontline strategic risk, not just a cost of doing business. APP fraud is exposing weaknesses in systems, culture and customer journeys, and regulators are watching. But this moment also creates opportunity. Firms that invest early in smarter monitoring, clearer customer communication and more joined up operational processes won’t just meet regulatory expectations, they’ll rebuild trust at a time when it’s under strain.

In an era where fraud is accelerating faster than defences, the winners will be those bold enough to rethink their approach now, before the next wave hits.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

Lease & desist: Landlords in the dock for counterfeit stock

Mon, 16 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:34019ad2-7239-498f-b965-0c3beeead691/as/ART-US00073.avif?assetname=ART-US00073.jpg

Brand interchange | 4 min read

Lease & desist: Landlords in the dock for counterfeit stock

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

While the shift towards online selling is undeniable, it is important to recognise that traditional brick-and-mortar shops continue to play a valuable role in retail. Ten years on we look at the important decision in Tommy Hilfiger Licensing LLC and Others v Delta Center a.s. (C 494/15) and its implications for landlords of tenants who infringe intellectual property.

Published: 16 March 2026
Authors: Eloise Di Pasqua & Shojibur Rahman

/content/dam/shoosmiths/lawyers/eloise-di-pasqua/profile

/content/dam/shoosmiths/lawyers/shojibur-rahman/profile

false

style

single-column-text

Decision: Tommy Hilfiger Licensing LLC and Others v Delta Center a.s. (C 494/15)
Court: Court of Justice of the European Union
Judgment Date: 7 July 2016
Decision: Here
Key Issues: Intermediary liability, trade mark enforcement, counterfeit goods, scope of injunctions, responsibility of marketplace operators

Background

The dispute focused on the Pražská tržnice market in Prague, where independent traders were repeatedly caught selling counterfeit branded goods. The landlord, Delta Center, managed the market by leasing stall spaces, but did not participate directly in the sale of any goods.

Luxury brands such as Tommy Hilfiger, Lacoste, and Burberry made the bold decision to target the landlord of the sprawling Prague market. Their intent was to challenge whether a landlord facilitating trading could be compelled to help prevent ongoing trade mark violations. In doing so, they challenged the status quo of intellectual property enforcement, raising a question that remains highly relevant: can landlords be held responsible when their premises are used for the sale of counterfeit goods?

The issue ultimately came before the Court of Justice of the European Union, which was asked to decide if a landlord of a physical market could be subject to injunctions requiring them to help prevent trade mark infringement by their tenants. In particular, could a landlord providing the infrastructure for infringement be classified as an ‘intermediary’ under EU intellectual property law?

Why was the landlord challenged?

The brand owners chose to focus on the landlord, not the individual traders, for several reasons:

counterfeit goods were being sold repeatedly within the marketplace;
the landlord was providing the commercial infrastructure that enabled these sales;
enforcement against individual traders was largely ineffective, as sellers could easily vanish or return under new identities.

The argument was that landlords were in a unique position to implement reasonable, proportionate safeguards, such as enhanced contractual controls or oversight, to curb the sale of counterfeit goods. The crucial legal question was whether a landlord, even without directly selling infringing products, could be required to act when their marketplace was repeatedly used for trade mark infringement.

Decision

The Court of Justice delivered a landmark ruling: operators of physical marketplaces can indeed be treated as intermediaries if their facilities are used by others to infringe intellectual property rights. This decision established that the same enforcement principles applying to online platforms also apply to traditional markets.

The ruling was based on several key findings:

leasing trading space is a commercial service enabling sales to the public;
intermediaries may be subject to injunctions requiring them to help prevent infringements;
physical and online marketplaces are treated alike for enforcement purposes;
crucially, the Court stressed that injunctions must be proportionate, and landlords cannot be obliged to constantly monitor all traders.

Commentary

This judgment aligned physical marketplace landlords with the established doctrine of intermediary liability, previously focused on online platforms. By confirming landlords as intermediaries, the Court expanded the options for brand owners seeking effective action against persistent counterfeiting.

Landlords are required to take proportionate, reasonable steps once they become aware of infringement, striking a balance between protecting trade marks and recognising market operators’ practical limits.

For landlords and market organisers, this serves as a lasting reminder: providing commercial space is not a neutral act when it is used for illegal trade. Awareness and inaction can trigger court-ordered obligations, even if the landlord is not directly involved in selling infringing goods.

The Court’s decision confirmed that enforcement can focus on the landlord who enables infringement, broadening the toolkit for trade mark owners. This significantly strengthened practical enforcement options for trade mark owners.

Key lessons for landlords

This ten-year-old ruling still sends a clear message to businesses providing commercial infrastructure:

you may be required to act even if you are not the infringer. Leasing stalls to traders who use them for counterfeit sales can trigger court-ordered obligations;
passivity is risky. Repeated problems demand reasonable, proportionate steps, such as improved trader vetting or clearer contracts;
physical markets are aligned with online platforms so that the same principles apply to both;
landlords are not automatically liable for damages, but they cannot remain passive when their premises are used for illegal trade.

Key lessons for brand owners

intermediaries are integral to enforcement. Platforms and market operators may face obligations when their services enable infringement;
physical and digital markets are treated alike. The same enforcement principles apply in both environments;
injunctions are effective tools and the courts can require intermediaries to take proportionate preventative steps;
targeting landlords can be more efficient. Acting against the landlord is often more practical than pursuing individual sellers.

Conclusion

Ten years on, Tommy Hilfiger Licensing LLC and Others v Delta Center a.s. stands as a reminder: landlords cannot avoid responsibility merely because they do not personally sell counterfeit goods. If their services enable infringement, courts can require them to act.

For brand owners, this strengthened enforcement tools. For operators, it highlights that providing commercial space carries legal responsibilities. As the distinction between online and physical marketplaces continues to blur, the law treats them consistently - a lesson that remains as relevant as ever.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

From COVID to conflict: The evolving face of force majeure in 2026

Mon, 16 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:71893375-48b7-4947-baa7-41f751ce0af3/as/ART-u2114277519_Close-up_product_shoot_of_deep_grey_heavy_bolt_co_b5572e30-be3f-411b-be68-6daca87f275e_3.avif?assetname=ART-u2114277519_Close-up_product_shoot_of_deep_grey_heavy_bolt_co_b5572e30-be3f-411b-be68-6daca87f275e_3.jpg

Article | 5 min read

From COVID to conflict

The evolving face of force majeure in 2026

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Disruption in the Middle East is exposing how well (or poorly) force majeure clauses have been drafted. Modern supply chains demand precision: clear thresholds, workable alternatives, and evidence backed mitigation. Businesses that act now, refreshing clauses and tightening operational playbooks, will stay resilient while others stall. In this article we outline what businesses should do next.

Published: 16 March 2026
Authors: Michelle Craven-Faulkner

/content/dam/shoosmiths/lawyers/michelle-craven-faulkner/profile

/content/dam/shoosmiths/lawyers/ben-gardner/profile

false

/content/dam/shoosmiths/lawyers/jonathan-smart/profile

false

style

single-column-text

Changing pressures, unchanged principles

Force majeure (FM) is not a one‑size‑fits‑all safety valve. Whether disruption from the current conflict in the Middle East (including spill‑over effects such as shipping diversions, port closures, sanctions/export controls, insurance limitations and energy price spikes) excuses non‑performance turns on the exact drafting, causation, mitigation, notice, and the relief the clause actually grants. These are the same fundamentals we highlighted during and after COVID, as well as the Ukraine conflict, in our podcast series and subsequent commentary. However, it should be noted that:

drafting has moved on since COVID. Parties now expect clearer event lists, calibrated thresholds (‘prevent’, ‘hinder’ or ‘delay’), explicit mitigation duties, suspension vs. termination mechanics, and carve‑outs (e.g., price changes). Our ‘Journey Through a Contract’ and 2024 supply‑chain series track this shift and show why FM must sit within a wider disruption and resilience toolkit, not act as a stand‑alone remedy; and
case law has evolved. In 2024, the Supreme Court in RTI v MUR Shipping clarified how FM interacts with reasonable work‑arounds, reinforcing the need to draft obligations to ‘overcome’ impediments (or expressly disclaim that).

1) What the present conflict changes—and what it doesn’t

What it changes:

risk profile and frequency of disruptions: route closures/diversions, inability to call at certain ports, crew safety constraints, cargo insurance restrictions, and delay costs are more common and less predictable than in steady‑state trading. Our 2022 FM specials anticipated this multi‑factor volatility when we discussed COVID/Brexit/Ukraine as overlapping shocks
regulatory overlay: sanctions/export controls and reputational restrictions may intervene even where physical performance remains technically possible; contracts now more often include sanctions and export‑compliance FM‑style triggers and termination rights – but we have to recognise, in the current situation at least, that sanctions can be relaxed and or amended with very little notice.
What it doesn’t change:
FM remains a contractual (not statutory) tool under English law; relief lives or dies by the clause. Drafting is therefore key
after RTI v MUR, any ‘we can’t perform’ argument must be tested against reasonable alternatives and the exact drafting on mitigation/overcoming impediments.

2) Immediate actions for live contracts which have the potential to be impacted by the current Middle East situation (next 7–14 days)

Locate and map all FM (and related) provisions across your critical supplier and customer contracts: FM clause; change in law; hardship/price review; logistics and routing flexibility; sanctions/export clauses; step‑in; termination; business continuity. Create a tracker capturing triggering events, identifying threshold verbs (‘prevent’/‘hinder’/‘delay’), notice requirements, relief, termination long‑stop, and mitigation duty.

Gather contemporaneous evidence that links the conflict to the specific failure or delay (carrier advisories, port notices, insurer correspondence). In most clauses there will be a requirement to demonstrate that causal link.

Serve contract‑compliant notices (compliant in terms of form, recipient, timing, content). Late or informal notices are a common reason FM, and many other contractual claims, fail.

Document all reasonable work‑arounds (re‑routing, alternative ports, modal shifts, substitute suppliers) and who pays, conscious of the RTI v MUR approach to alternatives.

Engage counterparties as soon as possible to discuss: (a) temporary adjustments (lead times, INCOTERMS, split deliveries); (b) cost‑sharing mechanisms; (c) short‑term price review; (d) interim inventory buffers. Collaboration is key.

3) Drafting a playbook for new or renegotiated contracts (next 30–60 days)

A. Define events precisely—and tailor to the corridor

Include conflict‑specific triggers where appropriate: war/armed conflict in named regions, closure of designated sea lanes/ports, maritime security advisories at specified levels, sanctions/export‑control changes.

B. Choose the right threshold verb

‘Prevent’ (high threshold) vs ‘hinder’/‘delay’ (lower). Align with risk appetite and industry norms; ensure consistency with service levels and LDs.

C. Hard‑wire mitigation and alternatives

Define ‘reasonable endeavours’ in context (e.g., re‑route via specified ports if commercially reasonable). Clarify who bears incremental cost and how additional time is measured.

D. Sanctions and compliance co‑ordination

Add a sanctions FM limb (suspension/termination where performance would breach sanctions/export rules), with notification and co‑operation mechanics.

E. Relief mechanics and long‑stops

Provide clear suspension, time relief, and a termination long‑stop after a defined continuous FM period; consider partial FM for divisible obligations; keep price review/hardship separate from FM.

F. Post FM

Ensure drafting clearly specifies what should happen when the FM has ceased to impact the contract. Consider whether it is reasonable and or achievable to recommence operations immediately and in full. Is a lead in period required to kick start operations? If the FM ceases to apply to one party but not the other what should the position be?

G. Carve‑outs

Exclude payment obligations and pure cost increases from FM unless agreed; handle margin pressure via indexation, surcharges or hardship clauses. Suspension and waiver of performance regimes will also be key.

4) Commercial levers beyond FM (consider using these first)

Flexible scope and routing clauses (alternative ports, trans‑shipment rights) to avoid tripping FM prematurely.

Inventory and forecasting (safety stocks, vendor managed inventory, revised minimum order quantities) with shared cost protocols temporary price review/surcharges tied to observable indices (e.g., bunker adjustment factors), combined with time relief.

Step‑in/dual sourcing where regulation allows, particularly in regulated sectors and critical infrastructure supply chains.

5) Typical scenarios and how the clause responds

Carrier avoids conflict zone → extended transit via alternative route: If FM requires ‘prevention’, a mere delay may not qualify; rely on routing flexibility or time‑relief mechanics unless the clause captures ‘delay’ or ‘hinder’.

Destination port closed / war‑risk not covered by insurer: FM more likely to bite if ‘war’, ‘blockade’, ‘port closure’, or ‘unavailability of insurance’ appear in the event list; check mitigation (alternate port delivery) and risk/cost split.

Sanctions tighten mid‑contract (supplier or end‑market): Treat under the sanctions clause first (suspension/termination); FM as back‑up. Notice and evidence remain critical.

Energy shock / rolling blackouts at supplier plant: May support FM if framed as government action/utility failure; otherwise, lean on BCP commitments and service credits/time relief.

6) Dispute posture and negotiation strategy

Identify issues as they arise: assemble factual chronologies, notices, logs of attempted alternatives, and decision notes

Collaboration frameworks: short‑term time relief + shared incremental logistics + re‑routing to avoid termination

Leverage RTI v MUR carefully: if seeking FM, show why suggested alternatives are not ‘reasonable’ under the clause; if resisting FM, evidence workable alternatives.

7) Shoosmiths references since COVID (authored or hosted)

Podcast – Journey Through a Contract (Special): Force majeure (24 Mar 2022)
Podcast – Force Majeure: What to do if the lights go out? (27 Oct 2022)
Podcast series – Supply chain & manufacturing (May 2024): Supply chain issues & disruption’
Podcast series – Supply chain & manufacturing (May 2024): Ep.3 ‘New tech solutions and digitalisation’
Article – Supreme Court sheds light on force majeure: What you need to know (June 2024)
Rail Talk with Shoosmiths – Episode 10: Support for UK Rail’s supply chain (17 Aug 2023)

8) What we recommend you do now

run a 10‑day FM & disruption audit across your top 20 supplier and customer contracts using the tracker headings in section 2.
pre‑agree routing and port flexibility (including cost‑sharing rules) for vulnerable lanes connected to the Middle East and adjacent corridors.
refresh your template suite: conflict‑specific event lists; calibrated threshold verbs; sanctions limb; explicit mitigation and cost allocation; suspension/time relief; termination long‑stops; hardship/price review separate from FM.
stand up a rapid FM notice protocol and internal playbook (legal + logistics + procurement) so notices are timely and compliant.
capture the story as you go: contemporaneous evidence of why an alternative was/was not reasonable under the contract—critical post‑RTI v MUR.

Closing

FM remains a useful tool, but in the current environment the winning strategy is contractual flexibility plus evidence‑backed mitigation, with FM as the back‑stop. If helpful, we can deliver a rapid contract audit, refresh your template clauses, and facilitate a supplier workshop to agree practical routing/price‑review protocols consistent with your risk appetite—approaches we have road‑tested with clients since COVID and shared in our podcast series above.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-sectors/ddcc-mobility-logistics-and-manufacturing-perspectives

]]>

Geopolitics, cyber risk & the future of energy disputes

Thu, 12 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:516d4f9e-20c9-45e9-9f10-e17dd1074f3b/as/ART-u2114277519_create_high_end_photography_showing_detail_of_cle_06f14ebf-b486-4593-9b68-b1971b1b9780_0.avif?assetname=ART-u2114277519_create_high_end_photography_showing_detail_of_cle_06f14ebf-b486-4593-9b68-b1971b1b9780_0.jpg

Article | 2 min read

Geopolitics, cyber risk & the future of energy disputes

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Energy businesses are facing a sharper, faster‑moving risk landscape. Geopolitical tension, cyber disruption and supply chain fragility are no longer background noise – they’re active drivers of disputes and strategic pressure. Forward‑thinking organisations are already adapting, embedding resilience from day one and treating dispute‑readiness as commercial strength, not cost.

Published: 12 March 2026
Authors: Stuart Clubb

/content/dam/shoosmiths/lawyers/stuart-clubb/profile

false

style

single-column-text

Our annual litigation report shows just how sharply geopolitics is reshaping risk for energy businesses. In the past 12 months, 62% of GCs and senior lawyers said the rising use of sanctions and export controls has increased litigation risk for their organisations. And leaders aren’t standing still: 66% have already proactively engaged with trade and government bodies to navigate these fast‑moving pressures. It’s a sector waking up to the reality that geopolitics is no longer a backdrop — it’s a direct driver of disputes, strategy and future‑proofing.

Geopolitics reshapes risk

Global energy and infrastructure supply chains are feeling the strain of geopolitical instability. Conflict‑affected shipping lanes can halt progress overnight, particularly where projects rely on specialist transport. Offshore wind is a clear example: components are vast, vessels are limited, and rerouting around conflict zones increases cost, delay and sanctions exposure. These pressures ripple through every tier of the supply chain, heightening the risk of disputes as timelines slip and insurers tighten their stance.

Cyber risk accelerates disputes

Cyber security is no longer a peripheral concern, either – it’s becoming a defining factor in project resilience. Highly connected systems and digital‑first operations mean a single breach can shut down entire sites, trigger contractual penalties and raise regulatory scrutiny. These incidents increasingly intersect with geopolitical tensions, amplifying exposure. While cyberattacks are not yet the dominant source of disputes for the sector, their velocity and impact are growing fast. It’s something that respondents to our survey are aware of, with 73% saying they have added greater resilience to cyber security as a result of geopolitical events. Those investing early in digital risk mapping, and embedding clear responsibilities throughout the supply chain, will be better placed to prevent future escalation.

Arbitration meets reality

When cross‑border energy and infrastructure disputes do hit, arbitration still leads the way as the preferred forum for resolution. Its neutrality, confidentiality and global enforceability under the New York Convention, remain unmatched. But the idea of arbitration as the “default” is shifting. Commercial teams want outcomes that protect working relationships and minimise spend. Mediation can often deliver that faster, at lower cost, and without the adversarial tone that can derail long‑term partnerships. It’s no surprise that escalation clauses requiring negotiation and, increasingly, mediation before arbitration are becoming standard across major energy contracts.

Drafting to avoid disruption

Dispute resolution clauses can too often be an afterthought, yet they are the framework that governs risk when pressure hits. Thoughtful drafting can prevent months of delay, cost and uncertainty. Clear escalation stages, practical response timelines and obligations that reflect how parties operate can make disputes easier to navigate and faster to resolve.

Conclusion

As the energy landscape becomes more entangled with global politics and digital threat, one thing is clear: resilience can no longer be retrofitted. It must be designed in from day one. The projects that succeed will be those built on clarity – clear contracts, clear responsibilities, clear routes to resolution.

The sector is entering a new era of pressure and possibility, and the organisations that stay ahead will be the ones that treat dispute readiness as strategic strength, not defensive planning.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-sectors/ddcc-energy-and-infrastructure-perspectives

]]>

FCA signals further change to proposed motor finance redress scheme

Thu, 5 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:7eee73ba-0960-4b28-add0-0306172dd1dd/as/ART-lucas-van-oort-gYPSX8zHVNA-unsplash.avif?assetname=ART-lucas-van-oort-gYPSX8zHVNA-unsplash.jpg

Article | 2 min read

FCA signals further change to proposed motor finance redress scheme

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The Financial Conduct Authority (FCA) has issued a further update on its proposed motor finance redress scheme.

Published: 5 March 2026
Authors: Mahesh Vara

/content/dam/shoosmiths/lawyers/mahesh-vara/profile

/content/dam/shoosmiths/lawyers/wayne-gibbard/profile

false

/content/dam/shoosmiths/lawyers/peter-richards-gaskin/profile

/content/dam/shoosmiths/lawyers/suzanne-taylor/profile

false

style

single-column-text

The wait for the final rules continues. However, the FCA has now indicated that the final rules are expected in late March, providing some short-term clarity and welcome relief for anyone with plans over this weekend!

Notably, the FCA has acknowledged that there are likely to be changes to any proposed Scheme. This follows an exceptionally high level of engagement with the consultation process, with more than 1,000 responses submitted. Such a volume of feedback, together with significant industry concern, has clearly prompted the FCA to reconsider certain aspects of the Scheme’s design and implementation.

Among the most significant anticipated changes is the introduction of a more structured implementation timetable. The FCA has indicated that firms may be given an implementation window of approximately three months, with an extended period of up to five months for older agreements. This adjustment appears aimed at recognising the operational complexity involved and providing firms with a more realistic timeframe in which to build compliant processes and systems.

Pragmatism enters the process

There are also signs of greater pragmatism in some of the proposed operational requirements. In particular, the FCA has suggested it may remove the obligation to write to customers by recorded delivery, a requirement that attracted criticism for being costly, impractical, and disproportionate. In addition, consumers who receive a redress offer may be permitted to accept it immediately, rather than being required to wait for a final determination. This change would streamline the customer journey and could reduce administrative burden for firms.

Despite these developments, the position for lenders remains challenging. The need for detailed scenario planning, investment in operational resilience, and preparation for multiple possible outcomes continues unabated. Firms must balance the demands of readiness against the risk of committing resources to processes that may yet be amended.

Legal risks on the horizon

Concerns about the structure and legal basis of the proposed scheme also continue to exist. As a result, absent those concerns being addressed in the final rules, the prospect of judicial challenge remains a realistic possibility. While the FCA has not addressed this explicitly, it would be prudent for firms to incorporate this possible eventuality into their preparations – particularly if they wish to challenge the Scheme.

We continue to work with our clients as they continue to prepare for any Scheme. Should you wish to discuss any aspect of the proposed redress scheme further, then please contact our team.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-sectors/ddcc-mobility-logistics-and-manufacturing-perspectives

]]>

Retail’s reality check: The Employment Rights Act 2025 (Part 2)

Wed, 4 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:3753a4b7-df38-4398-88fd-3cd9946f15b9/as/ART-US00062.avif?assetname=ART-US00062.jpg

Article | 4 min read

Retail’s reality check:

The Employment Rights Act 2025 (Part 2)

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

This is the second article in our two‑part series examining the Employment Rights Act 2025 (the Act) and its implications for retailers.

Published: 4 March 2026
Authors: Amy Frost, Simon Fennell & Jonathan Naylor

/content/dam/shoosmiths/lawyers/amy-frost/profile

/content/dam/shoosmiths/lawyers/stuart-lawrenson/profile

false

/content/dam/shoosmiths/lawyers/jonathan-naylor/profile

/content/dam/shoosmiths/lawyers/simon-fennell/profile

false

style

single-column-text

Part 1 explored harassment, unfair dismissal and equality action plans. Part 2 turns to reforms that will have a direct impact on workforce planning, union relations and organisational change across multi‑site retail operations.

Zero / low hours reform

Despite early headlines, there will not be a ban on zero‑hours contracts (exploitative or otherwise), nor does the Act define what ’exploitative‘ would cover. Instead, the Act introduces a new right to be offered guaranteed hours for certain zero and low‑hours workers after a reference period (anticipated around 12 weeks) where actual hours exceed the contractual minimum. ’Low hours‘ is not yet defined and further regulations are required to provide the detail on which workers will be caught by these provisions.

The government intends that contracts should reflect reality, giving both parties more certainty. The reality for retail is the administrative burden could be substantial particularly where hours fluctuate weekly, scheduling is devolved to stores, and seasonal peaks are common.

How the new rights will work in practice will be key and draft regulations setting out the detail can’t come soon enough. Unresolved issues that will concern retailers include:

students and holiday patterns: if a student works 35 hours over the summer on an 8‑hour contract, must the employer offer a guaranteed hours offer of 35 hours in September?
seasonal peaks: if Christmas hours spike, will employers be forced to uplift contractual hours that are unsustainable from January?
redundancy exposure: if employees accept higher guaranteed hours that later exceed business needs, does that create a redundancy risk?

Retail employers can take several practical steps now while waiting for the detailed regulations. This includes stress‑testing workforce planning and forecasting models to understand where guaranteed‑hours offers may be triggered and identifying roles where genuine flexibility remains essential. Scheduling technology should also be reviewed to ensure rostering systems can track contractual versus actual hours and automatically prompt compliant offers at the end of each reference period. Employers may need to simplify their contract structures, ensuring clarity on minimum hours, notice arrangements and temporary uplifts, and establish clear governance over who monitors reference periods, how offers are documented and how any declines are recorded. Finally, setting expectations early with variable‑hours staff about how guaranteed‑hours offers may work will help minimise confusion and reduce the risk of disputes later.

Industrial action reform

Industrial action changes will also impact retailers, particularly those with large, dispersed workforces.

Union relationships in the sector are increasingly a contingent partnership capable of collaboration when the groundwork is good, but sensitive to operational pressure. Employers in the sector should use the upcoming reforms as both a risk and an opportunity to refresh consultation frameworks, scenario‑plan for disruption, upskill leaders on how to negotiate with unions, and engage early with recognised unions.

The right of access to workplaces, both physically and digitally, from October 2026 along with the requirement on employers to inform employees of their right to join a union, both at the start of employment and at regular intervals thereafter, and the simplification of the statutory recognition process, is likely to increase union membership and recognition in workplaces. Employers will not be able to avoid interactions with unions, and need to be prepared for greater collective bargaining. This is particularly so given the changes to the industrial action requirements which will make this a more attractive option for unions and their members to pursue.

Given this fundamental change presents huge opportunities for unions to increase their memberships and influence, it is likely that they will be compiling lists of potential target employers where they feel they have good prospects of gaining recognition. Retailers, particularly those with a high public profile or brand, are likely to feature on such lists.

Employers may wish to consider their strategic approach to this issue ahead of the planned introduction of the reforms. For example, they may consider entering into voluntary recognition agreements with unions perceived as more pragmatic, rather than risk a more aggressive union gaining a foothold in the workplace.

Collective redundancies

From 2027, collective consultation will be triggered where an employer proposes to dismiss 20 or more employees at one establishment, or a further (yet to be confirmed) threshold across multiple establishments within 90 days. The government will consult on the multi‑site threshold later this year, a development of particular importance to retailers operating across stores, distribution centres and concessions.

Additionally, from April 2026, the maximum protective award for failing to collectively consult will double from 90 to 180 days’ gross pay per affected employee, with a potential uplift of up to 25% for breaches of the Statutory Code on Dismissal & Re‑Engagement. This means the total potential penalty could reach 225 days’ gross pay.

For multi‑site retailers, the reforms heighten the need for coordinated oversight. Employers will need to track proposed redundancies across all locations to ensure that aggregated numbers do not inadvertently trigger consultation obligations. The government has confirmed that representatives across different sites do not need to be consulted together or reach identical agreements, offering some flexibility for dispersed workforces.

Retailers should consider whether any planned organisational changes ought to be implemented before the new thresholds and increased penalties take effect. They should also monitor the government’s forthcoming consultation on multi‑establishment thresholds and evaluate whether to submit a sector‑specific response. Finally, multi‑site employers should ensure that their HR systems can track proposed redundancies across all locations so that collective consultation triggers are identified and acted upon in good time.

Strategic outlook for HR leaders

Preparing for these reforms is as much about culture as process. Employers who act early will find compliance easier and gain real benefits in retention, engagement and brand protection. Policies must work in practice not just in head office but on a busy Saturday in peak trading so partner closely with stores, distribution centres and contact centres when designing solutions. The new six month qualifying period for unfair dismissal also heightens the need for strong probation management.

Reliable data will be essential, from scheduling and hours to reported incidents and probation outcomes, enabling systems to automate routine compliance steps such as guaranteed‑hours offers.

With crucial detail still to come, especially on third‑party harassment and guaranteed hours, seeking early advice will help balance compliance with operational practicality and avoid unintended consequences.

In light of the significant legal developments that will take place this year, we are supporting a Future focused thought leadership series by the CIPD. The four-part series will explore how HR across key sectors like retail can stay credible, influential and sustainable amid fast-changing workforce, skills and organisational demands. For more information visit: Future-focused HR.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

]]>

Retail’s reality check: The Employment Rights Act 2025 (Part 1)

Wed, 4 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:be77720c-ead5-4b2c-acfc-77113f9106b3/as/ART-US00024.avif?assetname=ART-US00024.jpg

Article | 4 min read

Retail’s reality check:

The Employment Rights Act 2025 (Part 1)

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Major employment law reforms are coming. For retail and consumer employers already dealing with labour shortages, rising costs and high turnover, the impact will be significant.

Published: 4 March 2026
Author: Amy Frost

/content/dam/shoosmiths/lawyers/amy-frost/profile

/content/dam/shoosmiths/lawyers/stuart-lawrenson/profile

false

style

single-column-text

This article is the first in a two-part series examining the Employment Rights Act 2025 (the Act) and what it means for the retail sector. Part 1 focuses on harassment reform, unfair dismissal changes and equality action plans - three reforms which retailers should have on their radar.

Why these reforms land harder in retail

Retail and consumer businesses continue to face persistent wage pressure and tight labour markets, while digital transformation is reshaping many roles. Physical stores are also shifting towards experience‑led environments and micro‑fulfilment hubs, demanding more capable and engaged frontline teams. At the same time, most retailers depend on dispersed, customer‑facing workforces, flexible labour and seasonal staffing spikes making the upcoming reforms on harassment prevention, unfair dismissal and zero/low‑hours arrangements particularly significant for the sector.

Harassment reform

From October 2026, employers must take “all reasonable steps” to prevent sexual harassment of employees as well as to prevent third‑party harassment of employees across all protected characteristics. The bar is high and employers will only meet it if no further reasonable steps could have been taken, and unlike previous rules, there is no need for repeated incidents or prior knowledge. While tribunals will recognise the limits of controlling third‑party behaviour, especially where freedom of expression is engaged, they will still expect credible, proactive prevention, particularly in high‑exposure, customer‑facing sectors like retail.

Effective compliance in a retail environment means taking a genuinely proactive approach. Employers should:

carry out dynamic, site‑by‑site assessments of harassment risk, considering factors such as time of day, product lines, lone working, late‑night trading, and repeat‑offender patterns
reinforce expectations through customer codes of conduct, visible in‑store signage, and employee‑facing policies that explicitly address third‑party behaviour
provide practical frontline training, including how employees can intervene if they witness harassment, how employees can raise complaints and guidance for managers on handling complaints

Employers should also strengthen contractual terms with suppliers, contractors and landlords to support anti‑harassment standards, and ensure clear reporting routes with complaints or concerns being taken seriously and acted on quickly. Employers should also consider how to monitor complaints or concerns that are raised to highlight problem areas where further steps may need to be taken, operational controls such as buddying arrangements, lone‑working safeguards, CCTV placement, store layout choices and, where lawful, refusal‑of‑service protocols all play a crucial role in preventing harm and protecting staff. Employers in this sector should embed anti‑harassment measures into culture, operations, and third‑party relationships now so that compliance is a by‑product of doing the right things consistently.

Unfair dismissal reform

One of the most significant proposals under the Act for employers is the removal of the two‑year qualifying period for unfair dismissal. Employees will have the right to claim unfair dismissal after six months service from 1 January 2027, meaning that effective use of probationary periods will become even more crucial.

Roughly 6.3 million UK employees have between six months and two years’ service, with currently very limited protection against unfair dismissal but who would be eligible when the reforms come in next year. For retail, the implications are significant:

seasonal and short‑term hires that are on the books for six months or more will have the ability to bring unfair dismissal claims, placing greater focus on the process followed prior to ending their contracts.
with more employees in scope, the risk of constructive unfair dismissal claims also increases (such claims can arise from resignations alleging a fundamental breach of contract).
the increased scope could result in unmeritorious claims being brought. However, even weak unfair dismissal claims can consume management time and increase legal spend.

Retail employers should act now by reviewing contracts and probation processes as stronger probation management will be essential for assessing new recruits prior to the six month qualifying period being completed. Employers should tighten onboarding, set expectations early, and keep proportionate records of any performance or capability concerns. Investing in manager capability is critical too, equipping supervisors to give feedback, address attendance or conduct issues promptly, and make timely probation decisions. Seasonal workforce models should be stress‑tested so that standards are clear from day one and issues can be resolved quickly in peak periods.

Equality action plans

In addition to the publication of a company’s gender pay gap, large employers (with over 250 employees) will also be required to publish Equality Action Plans, to outline actions they will take to support certain groups within their workforces, such as those experiencing menopause.

The duty will be voluntary from April 2026 and mandatory from spring 2027, marking a shift from reactive management to more structured, accountable approaches that are likely to become a marker of best practice.

For retailers, the practical impact will be considerable. The sector is defined by large, dispersed, customer‑facing workforces, uniforms and PPE, shift‑based operations and high‑intensity environments, all of which can exacerbate symptoms for employees experiencing menopause or other health‑related conditions.

Retail employers should begin assessing where future adjustments may be needed. This includes considering whether current uniforms, PPE, and rest‑break arrangements would enable proportionate, short‑notice adjustments if required. The emphasis is on forward planning: understanding which aspects of the working environment may create barriers and identifying practical steps to reduce them.

What’s next?

These changes are only the start. In Part 2 of this series, we explore reforms to zero‑hours arrangements, industrial action, and collective redundancies, areas likely to reshape workforce planning across the sector.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

]]>

Shoospeak HR: Temps, timesheets and tension - agency work after zero hours reform

Tue, 3 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:e4adb3e1-3b7c-4143-9b6e-d8a173fb7eae/as/ART-declan-sun-bznK51HkoJ0-unsplash.avif?assetname=ART-declan-sun-bznK51HkoJ0-unsplash.jpg

alternative text

alternative text secondary

Podcast | 127 min listen

Shoospeak HR: Temps, timesheets & tension

Agency work after zero hours reform

false

aiSummary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The employment team are back with another episode of Shoospeak HR.

Published: 3 March 2026

Simon Fennell is joined by Sarah Owbridge to consider how the proposed changes under the Employment Rights Act 2025 for zero-hour contracts apply to the agency world.

Listen to the podcast below and send us your feedback to shoospeakhr@shoosmiths.com.

The Shoospeak HR podcast is brought to you by the national employment team at UK law firm Shoosmiths. Tune in for your fix of the latest legal views, thought provoking discussions and opinions about all things employee relations and human resources.

style

single-column-text

https://www.podbean.com/ew/pb-qhqh2-1a5d1da

false

/content/dam/shoosmiths/lawyers/simon-fennell/profile

/content/dam/shoosmiths/lawyers/sarah-owbridge/profile

false

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

]]>

Shoospeak HR: Flexible or fragile? Changes to zero-hour contracts

Mon, 2 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:6ff44dfb-3688-4bae-b04b-dc48f3e51361/as/ART-erik-eastman--6zFVL4YuaM-unsplash.avif?assetname=ART-erik-eastman--6zFVL4YuaM-unsplash.jpg

alternative text

alternative text secondary

Podcast | 11 min listen

Shoospeak HR: Flexible or fragile?

Changes to zero-hour contracts

false

aiSummary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The employment team are back with another episode of Shoospeak HR.

Published: 2 March 2026

Simon Fennell is joined by Steph Pye and Alex Bevan to discuss the proposed changes under the Employment Rights Act 2025 for zero-hour contracts.

Listen to the podcast below and send us your feedback to shoospeakhr@shoosmiths.com.

style

single-column-text

https://www.podbean.com/ep/pb-crxsx-1a5d1cf

false

/content/dam/shoosmiths/lawyers/simon-fennell/profile

/content/dam/shoosmiths/lawyers/steph-pye/profile

false

/content/dam/shoosmiths/lawyers/alex-bevan/profile

false

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

]]>

Oatlawed: The verdict on ‘Post Milk Generation’

Wed, 25 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:a265a42a-f161-48d9-b37e-7c9687a56f30/as/ART-US00027.avif?assetname=ART-US00027.jpg

Brand interchange | 2 min read

Oatlawed: The verdict on ‘Post Milk Generation’

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Decision: Dairy UK Ltd v Oatly AB [2026] UKSC 4
Court: Supreme Court
Judges: Hamblen L, Burrows, L, Hodge, L, Briggs L, Stephens L
Judgment: Here
Issue: S 3(4) of the Trade Marks Act 1994

Published: 25 February 2026
Author: Irem Alici

/content/dam/shoosmiths/lawyers/irem-alici/profile

false

style

single-column-text

Background

The Supreme Court’s decision in Dairy UK Ltd v Oatly AB brings a long running trade mark dispute to an end and is an important ruling for the fast growing alternative food and drinks sector.

The dispute arose from Oatly’s registration in April 2021 of the trade mark “POST MILK GENERATION”. The mark was registered for oat‑based food and drink products in classes 29, 30 and 32, as well as for T‑shirts in class 25.

Dairy UK, the trade association representing the UK dairy industry, applied to invalidate the mark under section 3(4) of the Trade Marks Act 1994 which states that:

“A trade mark shall not be registered if or to the extent that its use is prohibited in the United Kingdom by any enactment or rule of law other than law relating to trade marks.”

It argued that use of the mark was prohibited by Regulation (EU) No 1308/2013, legislation designed to help harmonise the market in agricultural products. In particular, Art 78 of the Regulation explains that certain “designations” should only be used for certain products. These “designations” are listed in Annex VII which includes (subject to certain exceptions) the “designation” MILK for milk and milk products intended for human consumption.

The United Kingdom Intellectual Property Office Hearing Officer agreed with Dairy UK in relation to the oat‑based food and drink products, but not the T‑shirts. That decision was overturned by the High Court, which held that the mark did not “designate” milk because it was not used as the name of a product. The Court of Appeal disagreed, finding that the use of “milk” within the mark fell within the regulatory prohibition. Oatly then appealed to the Supreme Court.

Issues

The appeal raised two main questions of statutory interpretation.

The first concerned the meaning of “designation” in Art. 78. Oatly argued that “designation” referred only to the name of a product. On that basis, “POST MILK GENERATION” did not infringe the prohibition, because it did not describe or name oat‑based food or drink as “milk”. Dairy UK argued for a broader interpretation, submitting that “designation” covers any use of a protected dairy term in relation to a product, whether or not it is used as the product name.

The second issue concerned the exception in Annex VII, which allows otherwise prohibited designations where they are “clearly used to describe a characteristic quality of the product”. Oatly argued that “POST MILK GENERATION” clearly conveyed that the products were milk‑free. Dairy UK disagreed, contending that the phrase was ambiguous and consumer‑focused, referring to a group of consumers rather than a characteristic of the products themselves.

In addressing both issues, the Supreme Court applied ordinary principles of domestic statutory interpretation, while recognising the EU origin and purpose of the legislation. The Court stressed that the regulatory regime is concerned not only with avoiding consumer confusion, but also with maintaining fair conditions of competition in agricultural markets.

Decision

The Supreme Court unanimously dismissed Oatly’s appeal.

On the first issue, the Court rejected the narrow interpretation of “designation”. It held that, in context, the term is deliberately broader than “name” or “sales description” and covers the use of protected dairy terms in relation to products generally. As a result, the inclusion of the word “milk” within the composite mark “POST MILK GENERATION” amounted to the use of a prohibited designation in relation to non‑dairy food and drink.

The Court also confirmed that the prohibition applies regardless of whether consumers are likely to be misled. The aim of the legislation is not limited to preventing confusion, but also includes protecting dairy terms and preserving the competitive framework established by the Regulation.

On the second issue, the Court found that the mark was not saved by the exception for designations describing a characteristic quality. “POST MILK GENERATION” was held to convey a generational or ideological message directed at consumers, rather than clearly describing a product attribute such as being milk‑free. Even if some consumers might draw that inference, it was indirect and insufficiently clear to meet the statutory test.

The appeal was therefore dismissed. The trade mark remains invalid for oat‑based food and drink products, but valid for T‑shirts.

Commentary

While ostensibly a narrow trade mark issue, this could have wider implications for the alternative food and drinks sector. In particular, Regulation (EU) No 1308/2013 also applies to certain “designations” for: beef and veal; wine; poultry; spreadable fats; olive oils and table oils. Those businesses supplying alternatives for these products may expect increased scrutiny on their trade mark filings.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

From brand to byword? Stopping the slide to genericide

Tue, 24 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:d913d3c7-73c0-4f47-8348-0eabac05342a/as/ART-u2114277519_corporate_--ar_169_--v_7_c83d69b5-d931-41c5-aad2-ea6e7a9197b6_3.avif?assetname=ART-u2114277519_corporate_--ar_169_--v_7_c83d69b5-d931-41c5-aad2-ea6e7a9197b6_3.jpg

Article | 4 min read

From brand to byword?

Stopping the slide to genericide

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

As brands grow, cultural fame can become legal risk. Genericide is rising, and every category‑defining business must act now to protect what makes its trade mark distinctive.

Published: 24 February 2026
Authors: Antony Craggs

/content/dam/shoosmiths/lawyers/nicky-jenkins/profile

/content/dam/shoosmiths/lawyers/anna-corney/profile

false

style

single-column-text

When a brand achieves substantial commercial success and cultural significance, the trade mark may be used by the public as shorthand for the product category itself. Over time, this transformation from a distinctive indicator to a generic term can lead to revocation of the trade mark.

From BJORNEKULLA, KORNSPITZ, SPAMBUSTER to DRYROBE, there has been a long line of cases addressing genericism. In the latter, Dryrobe successfully defended its DRYROBE mark against claims of genericide, but the case underscores a wider tension: distinctiveness is both the foundation of trade mark protection and the attribute most vulnerable to erosion through linguistic drift.

This article outlines the legal framework governing genericide, highlights key authorities, and offers practical steps for brand owners to prevent their marks from sliding into the generic.

What is genericide?

Genericide describes the process by which a once‑distinctive trade mark becomes the common name in the trade for the goods or services it is registered. The statutory mechanism is found in s.46(1)(c) Trade Marks Act 1994, which provides that a trade mark may be revoked if, after registration: “…in consequence of acts or inactivity of the proprietor, it has become the common name in the trade for a product or service for which it is registered.”

Its rationale is clearly articulated in Kerly’s: the register must not be cluttered with monopolies over terms that the public and traders need to use descriptively.

While genericide is usually driven by public behaviour, it is triggered legally only where that behaviour can be attributed to the acts or omissions of the proprietor, showing how brand stewardship plays a central role in preserving distinctiveness.

“Tupperware” is the classic example of a mark walking the tightrope between fame and genericness. Although still a valid trade mark, global commentary frequently highlights how consumer vernacular threatens its distinctive character.

Other international examples include “thermos”, “aspirin”, and “escalator”. All of which lost trade mark significance in the US, which illustrates the universal risk that uncontrolled linguistic adoption by consumers can deplete even the strongest marks.

Legal test for genericide

Courts apply a fact‑sensitive “use as a mark” analysis to determine whether a sign still performs its essential function: identifying trade origin. Key factors include:

1. consumer perception

The central question is whether the average consumer uses the term to identify the trade mark owner’s product specifically, or to describe the product category more generally. Even widespread colloquial misuse is not determinative if consumers still recognise the term as a brand.

2. trade usage

If retailers, distributors or competitors adopt the term generically without correction, that weighs heavily in favour of genericism.

3. proprietor conduct

Section 46(1)(c) explicitly links revocation to the proprietor’s “acts or inactivity”. Failure to challenge misuse, educate the public, or maintain brand standards all create risk.

4. presentation of the mark

The court considers real‑world use: are the ® or ™ symbols used? Does packaging present the mark distinctively, or merely as product description?

Practical steps to prevent genericide

Brand owners can mitigate the risk of genericide through disciplined brand management:

1use the mark as an adjective, not a noun or verb: Prefer “DRYROBE® changing robe”, not “a dryrobe”. Correct employees, partners, and marketing teams who use it incorrectly.
apply ™ or ® consistently: Symbols reinforce to the public and the trade that the sign is a trade mark.
issue and enforce brand usage guidelines: Provide standard wording for press, retailers, ambassadors, and influencers. Require distributors to follow brand usage in listings and advertising.
monitor and police misuse: Monitor social media, e‑commerce platforms, and industry press. Send cease‑and‑desist letters where necessary. Challenge dictionary entries, product category labels, and retailer headings that use the sign generically.
avoid encouraging generic use through marketing: Never use the brand in lowercase if it is registered in uppercase. Avoid slogans or hashtags suggesting nounal use (e.g., “grab your dryrobe”).
educate consumers subtly: Blog posts, FAQs, and packaging can include reminders that the sign is a registered trade mark. Consider “BRAND® is the original [product type]” messaging.
maintain strong, distinctive brand presentation: Ensure packaging, logos, and website layouts highlight the mark’s “brand” function. Distinctive branding can reinforce trade origin.
document corrective efforts: If litigation arises, evidence of consistent enforcement is invaluable.

Conclusion

Genericide is a real and ongoing threat to brands, but it is not an inevitable consequence of commercial success. The Dryrobe litigation shows that the courts will protect strong, well‑managed brands, but only where proprietors actively preserve distinctiveness and resist misuse.

A trade mark is not a static property right. It depends on the perceptions of consumers, the behaviour of the trade, and the vigilance of the proprietor. With deliberate management, clear communication, and firm enforcement, even the most culturally prominent brands can avoid sliding into the generic.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-intellectual-property

]]>

New tech, old law? UKJT considers liability for AI harm

Fri, 20 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:7ab40224-69f5-4efd-aa64-40370c729484/as/u2114277519_Macro_photography_of_a_tech_device_photo_product_ph_2dd8a26b-5b15-49ab-8eec-1b96481517c6.avif?assetname=u2114277519_Macro_photography_of_a_tech_device_photo_product_ph_2dd8a26b-5b15-49ab-8eec-1b96481517c6.png

Article | 6 min read

New tech, old law?

UKJT considers liability for AI harm

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

AI adoption continues to accelerate across sectors, with a significant majority¹ of businesses reporting major performance gains as a result. At the same time, the internal governance around AI adoption isn’t always keeping pace², and AI-related litigation is a key concern for many in-house legal teams³. Add to this an absence of any overarching legal framework for liability in relation to AI in the UK,⁴ and the net result is a somewhat heady mix of short-term gains with (at least perceived) longer term uncertainty and risk.

Published: 20 February 2026
Authors: Alex Bishop, Peter Richards-Gaskin, Alex Kirkhope, Sarah Reynolds, Claire Kershaw, Stefanie Hughes

/content/dam/shoosmiths/lawyers/alex-bishop/profile

/content/dam/shoosmiths/lawyers/peter-richards-gaskin/profile

false

/content/dam/shoosmiths/lawyers/alex-kirkhope/profile

/content/dam/shoosmiths/lawyers/sarah-reynolds/profile

false

style

single-column-text

Against this background, the UK Jurisdiction Taskforce (UKJT) has recently published, and is consulting on, a draft legal statement on liability for non-deliberate AI harms under the private law of England and Wales (the Statement). The core issue the Statement is concerned with is “in what circumstances, and on what legal bases, English common law will impose liability for loss that results from the use of AI”.

The UKJT’s approach to this is founded on the premise that AI (defined in the Statement as “a technology that is autonomous”⁵) does not have legal personality in English law so liability for any harms caused by the use of it must therefore be attributed to other ‘legal persons’. Despite the novel context, the UKJT suggests such liability can be attributed using ordinary existing legal principles within the ‘inherently flexible’ English common law system.

From that starting point, the Statement addresses the following questions:

does the principle of vicarious liability apply to loss caused by AI?
in what circumstances can a professional be liable for using or failing to use AI in the provision of their services? If AI used in the provision of professional services produces erroneous output, is the professional liable for loss resulting from the error?
can a person ever be liable for harms caused by use of AI where there is no fault on their part?
does liability attach to false statements made by an AI chatbot?

Key takeaways / comment

Overall, the Statement serves as a helpful reminder of both (i) the extent to which existing legal principles can be applied to the relatively novel scenarios and risks of AI use and (ii) the ability of the English common law system to adapt further where necessary to address these.

In most commercial contexts the contractual arrangements between the various parties to an AI supply chain will be the most important legal framework governing liability for any non-deliberate harm arising. The need for application/analysis of tortious or other legal principles is likely to be relatively rare in practice, and parties within the AI supply chain should therefore prioritise clear and robust contractual allocations of risk, and view any potential claim in negligence as amongst themselves as a fallback Claims brought by end users against professional services firms are likely, however, to be brought in professional negligence, whether under the terms of their contract or under tort.

Meticulous drafting of contracts has always been important, and highly complex supply chains are also nothing new. Nonetheless in the context of AI supply chains (the structure of which, the Statement notes, is likely to change as the technology advances), contracting parties and their advisers will benefit from renewed emphasis and particular attention to detail around the ‘basics’ of warranties, indemnities, limitations and exclusions. A thorough understanding of the technology, roles and responsibilities of all parties within the supply chain will be key in apportioning liability and managing risk appropriately.

It’s worth noting in this context that, to date, AI vendors have been reluctant to offer detailed liability cover in respect of ‘downstream’ use of their products and platforms, though basic protection such as IPR indemnities for AI outputs is becoming more common with larger vendors. Over time our expectation is that, in the same way as for data protection, under increased customer demand - more detailed template clauses will begin to take hold, requiring vendors to verify not only legal compliance, but also the broader legal, security and ethical processes and governance they have in place in respect of their AI systems. Given the dynamic nature of AI systems, their performance, ongoing development and outputs, such governance would cover the full lifecycle of the system, spanning its historic development and training, current performance as well as ongoing oversight (human or otherwise) to provide customers with adequate assurance as to the product’s accuracy and integrity over the term of its deployment.

In the rarer cases where liability cannot be determined under contractual arrangements (and with reference to the four questions noted above):

the principle of vicarious liability is unlikely to apply to harm caused by AI. Since an AI system has no legal personality itself, it cannot have the primary liability upon which the vicarious liability of another (legally recognised) person could be based. That said, an employer may be vicariously liable for loss resulting from the negligent use of AI by an employee (subject to the usual analysis).
the question of whether a professional has been negligent in their use of AI – or for failing to use AI – is likely to be determined in much the same way as the question of whether they have been negligent in using – or not using – any other tool available to them, applying well-established legal principles⁶. It will be highly fact specific; for example:
- evidence as to the standard of care exercised by reasonably competent members of the relevant profession⁷ will be crucial. While this may be informed by any applicable guidance from regulators/professional bodies (to which professionals must of course pay close attention), as the UKJT notes this “tends to be somewhat high level”, and evidence as to consistent market practice may be hard to pin down for a variety of reasons.
- particular uncertainties may arise in relation to causation where it is necessary to understand why AI produced the output it did (not only that it was incorrect). Maintaining clear and comprehensive audit trails (for example of prompts to the AI tool and steps taken to check/refine output, amongst other things) may help to fill evidential gaps.
whether in the context of AI use or generally, a person will not normally be liable for harm caused through no fault of their own, save for a failure to meet an agreed standard or result. In light of which, if the professional advice produced falls below the standard expected of a reasonably competent professional in that field, then it is likely that a professional services firm will be found liable in negligence to an end user/client, even if it was AI that caused or made the error. In addition, where an AI system is incorporated into a tangible product, such as a CD-ROM for example, the Consumer Protection Act 1987 will apply and carries strict liability for defective products causing certain physical harms. The Law Commission has stated it intends to review this area of the law including to address the status of “pure software”⁸.
non-contractual liability may in principle arise for statements made by an AI chatbot, in negligent misstatement or misrepresentation, deceit, libel, slander and/or malicious falsehood. As ever much will depend on particular facts, for example whether the chatbot’s response was autonomous or pre-determined, whether it is clear the AI chatbot is just that (as opposed to appearing as a chat function with a human), or whether the chatbot was well known to hallucinate.

Next steps

While the Statement goes some way to dispelling perceived legal uncertainties around liability for AI-related harm, needless to say real uncertainties remain. Robust governance frameworks and contractual arrangements are essential to mitigating the most significant risks/uncertainties, ensuring management time and resource can remain focussed on driving business forward. Flowing that governance and contractual assurance right through an organisation’s AI supply chain will increasingly become essential rather than a ‘nice to have’.

The consultation closed on 13 February 2026 and the UKJT states it intends, once responses have been considered, to publish a final version of the Statement as soon as possible.

More information

If you’re navigating the governance or contractual issues raised in this article – and need to protect your organisation’s risk and liability when procuring AI systems – our AI and dispute resolution and litigation teams are ready to help you move forward with confidence.

¹ 64% of respondents to Shoosmiths’ AI Governance Report: Uncharted territory: Navigating AI governance for better business performance.
² 32% of respondents to the above survey reported having advanced accountability frameworks in place.
³ 55% of respondents to Shoosmiths’ Litigation Risk Report 2026 expect AI-related litigation to increase.
⁴ Other jurisdictions, including the EU with its stalled AI Liability Directive, have also struggled to codify clear liability principles in relation to AI.
⁵ Note that there is currently no universally accepted definition of AI, though the definition adopted by the UKJT within its Statement deliberately shares lineage with definitions used by UK Government, the EU and the OECD.
⁶ See in particular South Australia Asset Management Corporation v York Montague Ltd [1996] UKHL 10 and Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20
⁷ In accordance with the ‘Bolam test’ from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
⁸ This is a nuanced area given the state of the art in relation to software delivery methods and the current precedent that software-as-a-service does not amount to “goods” under UK legislation.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

The rise & rise of the influencer

Mon, 16 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:6fd61c76-788e-45a1-a394-562a08b3daad/as/ART-rodolfo-puchulu-jGfIzudYK_Q-unsplash.avif?assetname=ART-rodolfo-puchulu-jGfIzudYK_Q-unsplash.jpg

Brand interchange | 3 min read

The rise & rise of the influencer

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Over the past few years, I’ve worked my way through a myriad of lifestyle, health and fashion “fixes.” I’ve abandoned UPFs, renounced red meat, gone organic, flirted with 0% beer, invested in a machine to grow herbs, bought a genius multitool for adventures, and succumbed to a “transformer” bag that promises to shift from backpack to briefcase “in seconds”, to make life more “efficient and enjoyable.” I have also downloaded an impressive number of apps, mostly to solve problems I didn’t know I had.

Published: 16 February 2026
Author: Andrew Brennan

/content/dam/shoosmiths/lawyers/andrew-brennan/profile

false

style

single-column-text

Predictably, none of this has transformed my life. I am not fitter, calmer, more stylish nor more productive. The herb machine sits idle, the multitool remains in its box, I’ve enthusiastically welcomed back red meat (and beer), organic shopping proved too expensive, and the “transformer” bag has delivered neither efficiency nor enjoyment. The only measurable differences are a lighter bank balance and the hours surrendered to social media, absorbing life advice from younger strangers - which, regrettably, accounts for much of the above.

Increasingly, this is the world we live in: one in which influencers act as guides to everything from fitness regimes to financial planning. Their recommendations shape consumer behaviour, while their faces, voices, personalities and even AI‑generated avatars have become valuable commercial assets in their own right.

Nowhere is this shift more apparent than in the recent $975 million deal involving TikTok star Khaby Lame, who has effectively licensed not just his likeness, but a full AI‑generated digital replica of himself. The transaction, which includes rights to a “digital twin” capable of mimicking his voice, expressions and online persona, signals a further shift in how image rights are understood and monetised within the creator economy.

For the purchaser, Rich Sparkle Holdings, the attraction is obvious: Lame’s AI avatar can appear in multiple languages, across multiple time zones, producing content around the clock without the constraints of human availability. Projections suggest that the digital version of Lame could help generate billions in annual revenue.

But the deal also exposes a rapidly expanding set of legal and commercial questions relating to the protection and exploitation of image rights, especially where AI is involved. Historically, image rights concerned narrower issues: the use of photographs, lookalikes in advertising or celebrity endorsements. Today, the scope is far broader.

For influencers, this raises difficult questions around control, consent and longevity. Who owns the data used to train an AI model to behave “like” them? What happens if the avatar endorses something they disagree with, continues to appear commercially long after rights have expired, or is convincingly misused in a deepfake? For lawyers, the challenge is intensifying, as legislation struggles to keep pace. Nowhere is this more evident than in the UK, which lacks a comprehensive statutory framework on image rights, leaving practitioners to stitch together passing off, data protection, privacy, copyright and contract law to address scenarios legislators never envisaged.

The Khaby Lame deal highlights a wider reality: influencers are no longer simply creators, but global brands whose identity can be licensed, replicated and monetised across multiple channels, often at a scale once reserved for major corporations. As their economic footprint expands, so too does the case for modernising the law on image rights, particularly in the UK where calls for reform are growing louder.

And for anyone wondering how we arrived at this point, it’s worth reflecting on all those hours spent scrolling through social feeds and “life hacks.” Influencers didn’t simply rise - we invited them in, one ‘like’ at a time.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

Click, complain, complications: The perils of online takedowns

Fri, 6 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:7d291503-dc0f-4f7d-b5f2-bf419370dd56/as/ART-US00092-(11).avif?assetname=ART-US00092+%2811%29.jpg

Brand interchange | 3 min read

Click, complain, complications

The perils of online takedowns

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Court: Intellectual Property Enterprise Court
Judge: HHJ Hacon
Judgment: Here
Issue: Actionable (Groundless) Threats

Published: 6 February 2026
Author: Andrew Brennan

/content/dam/shoosmiths/lawyers/andrew-brennan/profile

false

style

single-column-text

Online marketplaces such as Amazon and eBay are a key route to market for many brand owners. However, with success comes imitation, with many brand owners identifying third party products on the platforms which infringe their intellectual property rights.

To address this, the online marketplaces provide a takedown service, whereby the brand owner can identify its intellectual property and the alleged infringement. If the online marketplace agrees, typically the allegedly infringing product is removed from the platform. The number of online takedowns today runs into the millions.

However, what happens if the intellectual property right asserted is invalid or the allegation of infringement without basis? In these circumstances, the alleged infringer’s product may be removed without justification, with the alleged infringer suffering loss of sales. Typically, it is very difficult for the alleged infringer to persuade the online marketplace to reverse its decision.

In the United Kingdom, this can give rise to a cause of action for actionable threats. Broadly, the takedown notice may constitute a threat of infringement proceedings. In such circumstances, the alleged infringer (a person ‘aggrieved’ by the threat) may be able to commence proceedings seeking a declaration from the court that there is no infringement and damages arising from the takedown. For simple cases, the claim can be conducted relatively cost effectively. This is often an unexplored risk for brand owners using takedown notices.

These are the allegations raised in Luxe World v Touch of Vogue. Here, Luxe World alleges that Touch of Vogue’s registered design (for an attachment to a bicycle, pictured below) used to takedown Luxe World’s bicycle products is invalid because it was prior disclosed outside the grace period. If so, it says that the takedown notice constitute a threat of infringement proceedings for which it suffered damages. As a result, it seeks certain relief from the court, including an injunction and its damages or an account of Touch of Vogue’s profits (typical remedies for a claim of intellectual property infringement).

There are, however, limitations to such a claim. While it was common ground that Luxe World was entitled to seek its damages (if any), at the Case Management Conference of the claim, His Honour Judge Hacon was asked to consider whether Luxe World was entitled to seek an account of Touch of Vogue’s profits.

Here, HHJ Hacon concluded that such relief was not available. The legislation addressing actionable threats (s. 26C of the Registered Designs Act 1949) only makes provision for damages. This is distinct to the legislation which addresses infringement (24A(2) of the Registered Designs Act 1949). Further, he held that he was bound by the reasoning in Devenish Nutrition Ltd v Sanofi-Aventis SA [2009] Ch 360 (CA) that restitutionary remedies such as an account of profits are not available in respect of non‑proprietary torts (such as unjustified threats).

Notably, it followed that, as Luxe World was only entitled to seek damages the Court held it should quantify those damages and pay the appropriate court fee (typically a claimant only has to pay the court fee for the injunction, with the court fee for damages/account of profits payable when these are determined at a subsequent inquiry/account of profits).

Ultimately, the claim serves as a timely reminder that online takedown tools, while powerful, are not without legal risk. Brand owners who rely on these mechanisms must ensure their rights are valid and their allegations well‑founded, or risk finding themselves on the receiving end of an actionable threats claim.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

SMMT: A hard year ahead, but UK auto’s recovery is underway

Tue, 3 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:2151e3c6-31ad-4eb6-aeac-24501b1efd1f/as/ART-rodolfo-puchulu-a6Emhe6V8zU-unsplash.avif?assetname=ART-rodolfo-puchulu-a6Emhe6V8zU-unsplash.jpg

alternative text

alternative text secondary

ARTICLE | 4 min read

SMMT: A hard year ahead, but UK auto’s recovery is underway

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

UK automotive faced a tough 2025, but EV growth, renewed production momentum and smarter strategy show the sector is shifting from survival to recovery.

Published: 3 February 2026
Author: Jonathan Smart

/content/dam/shoosmiths/lawyers/jonathan-smart/profile

false

style

single-column-text

The UK automotive sector has just come through what the SMMT rightly calls one of the toughest years in a generation and the numbers are sobering.

Total vehicle production fell 15.5% in 2025, with just 764,715 cars and commercial vehicles leaving UK factories. Car output dropped 8%, while commercial vehicle production collapsed by a staggering 62.3% as plants consolidated and supply chains buckled under disruption.

That is not a cyclical wobble. It is a stress test and reflects the perspectives we are seeing from in-house lawyers, as shown in our recent article, Automotive supply chains: A new era of dispute risk.

Cyber disruption, trade uncertainty, particularly across the Atlantic, and the painful reality of restructuring for electrification all hit at once. Add in persistently high UK energy costs and you have a sector that has spent 2025 firefighting rather than investing.

And yet, buried in the gloom is something the UK automotive industry has not had for a while: momentum.

December mattered and not just statistically

December production figures might look like a footnote, but they matter. Car output rose 17.7% year‑on‑year, ending four months of decline and signalling that the production engine is starting to turn again. This wasn’t a blip driven by incentives or stock clearance. It reflected new models entering production and manufacturers moving from transition to execution.

Electrification, often portrayed as a drag on UK competitiveness, is in fact becoming a source of resilience. Production of battery electric, plug‑in hybrid and hybrid vehicles rose 8.3%, reaching a record 41.7% share of total output and represents a structural shift, not a trend line.

The UK is no longer “getting ready” for EVs. It is building them at scale. Just as important the workforce is adapting as our own employment team reports Driving EV innovation: Talent & law.

Exports still define the sector and that cuts both ways

UK automotive remains fundamentally export‑led. 77.5% of vehicles produced in 2025 were exported, with Europe accounting for over half of that volume. The US remains a critical high‑value market, but exports there fell sharply amid tariff uncertainty, underlining how exposed the sector remains to geopolitical drift rather than industrial failure.

This matters because manufacturers are increasingly building cars close to their markets; localisation not globalisation is the new world order Automotive supply chains: A new era of dispute risk. If the UK wants production volume, it needs trade certainty, not just trade ambition. Looming changes to Rules of Origin under the Brexit framework, alongside increasingly protectionist “Made in Europe” rhetoric, risk turning friction into a permanent feature rather than a transitional hangover.

For a sector that already competes with some of the highest industrial energy costs in Europe, that would be self‑defeating.

The recovery path is visible, but not guaranteed

The SMMT’s outlook for 2026 is cautiously optimistic. UK car production is expected to return to growth, rising by more than 10% to around 790,000 units, with overall light vehicle production potentially reaching 824,000 units. Under the right conditions, the industry could reach one million vehicles by 2027.

Those conditions are not abstract. They are practical and well‑rehearsed:

competitive energy costs that do not penalise manufacturers for electrifying;
delivery, not just announcement, of the Industrial and Trade Strategies;
supply‑chain support that recognises UK automotive is only as strong as its tier‑two and tier‑three base;
and a healthy domestic market, because you cannot anchor production on exports alone.

Significant investment has already been committed, public and private, including government support through the DRIVE35 programme. But capital is mobile. If the UK cannot translate strategy into certainty, that investment will quietly re‑route elsewhere.

This is not a nostalgia industry, it’s an advanced manufacturing test case

Too often, automotive is framed as a legacy sector asking for protection. The reality is the opposite. UK automotive is a bellwether for whether Britain can compete in advanced, capital‑intensive, net‑zero manufacturing at all.

If we can get this right; aligning industrial strategy, energy policy, skills and trade automotive becomes a growth engine again. If we get it wrong, the decline will be polite, gradual and irreversible.

The good news? The models are coming. The factories are retooling. The workforce is adapting. The recovery is no longer hypothetical.

The question for 2026 is brutally simple: will policy keep up with production or get in its way?

/content/shoosmiths/all-experience-fragments/perspectives-disclaimer

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-sectors/ddcc-mobility-logistics-and-manufacturing-perspectives

]]>

Brand interchange: Blockbusters, biopics & breakouts

Mon, 2 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:45f2d51a-7ee0-4842-b83f-33536210349f/as/ART-US00092-(19).avif?assetname=ART-US00092+%2819%29.jpg

Brand interchange | 4 min read

Blockbusters, biopics & breakouts

The top 10 films where the plot turns on intellectual property

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Intellectual property might not sound like the stuff of cinematic thrills, but Hollywood has quietly built an impressive filmography around patents, trade marks, trade secrets and licensing deals.

Published: 2 February 2026
Author: Andrew Brennan

/content/dam/shoosmiths/lawyers/andrew-brennan/profile

false

style

single-column-text

Intellectual property might not sound like the stuff of cinematic thrills, but Hollywood has quietly built an impressive filmography around patents, trade marks, trade secrets and licensing deals. From dinosaurs running amok to mop‑based entrepreneurship, IP disputes have shaped some of cinema’s most memorable storylines. Here are Shoosmiths’ intellectual property team’s top ten films where the plot hinges on intellectual property (sometimes explicitly, sometimes lurking behind the chaos) plus one honourable mention that practically defines the dangers of copyright infringement.

1. Jurassic Park (1993)

IP issue: Misuse of trade secrets

The rampaging T. Rex and terrified visitors tend to overshadow the fact that the entire plot of Jurassic Park is set in motion by an attempt to misappropriate trade secrets. Dennis Nedry, disgruntled system architect, attempts to steal InGen’s closely guarded trade secrets (including the embryo storage system and genetic engineering know‑how). His industrial espionage triggers a catastrophic systems failure, freeing the dinosaurs and reminding employers everywhere that cybersecurity matters almost as much as fencing.

2. Tetris (2023)

IP issue: Copyright licensing

You wouldn’t expect a film about a falling‑blocks puzzle game to be a corporate thriller, yet Tetris turns the battle for video game licensing rights into a Cold War‑era caper. The film follows Henk Rogers as he navigates Soviet bureaucracy, corporate rivals, and fragile geopolitical tensions to secure handheld rights for Nintendo’s Game Boy. It’s a sharp, fascinating demonstration that IP negotiations can be every bit as gripping as a spy movie.

3. Zootropolis 2 (2025)

IP issue: Patent entitlement

While animated blockbusters rarely dabble in patent law, Zootropolis 2 stands out as the first (and possibly last) children’s film ever to feature a dispute over patent entitlement as a central plot device. Agnes the pit viper is revealed to be the true inventor of the weather walls, with business-lynx, Ebenezer Lynxley, falsely claiming he was the inventor and seeking the patent for it. Murder, the framing of the true inventor and the creation of a multi-generational business empire ensue. It’s IP law with fur. Zootropolis 2 receives bonus points because (it is alleged) Disney could not use Zootopia (the name in its home market) in the United Kingdom and some other markets because of trade mark issues.

4. The Founder (2016)

IP issue: Trade marks and brand control

Part rise‑and‑rise tale, part cautionary story, The Founder follows Ray Kroc’s transformation of McDonald’s from a local diner into a global empire. The real IP twist? Kroc recognises that the true value of the business isn’t in its burgers but in its brand (the McDonald’s name and the Golden Arches). By securing control of the branding, he effectively sidelines the original founders from their own creation, illustrating the formidable power (and peril) of having control over one’s trade marks.

5. The Social Network (2010)

IP issue: Copyright infringement and misuse of confidential information

David Fincher’s taut drama about the birth of Facebook is fuelled by allegations from the Winklevoss twins that Mark Zuckerberg took their idea (and elements of their original code) for a Harvard social network. The legal battle highlights the blurred lines between inspiration, collaboration, and misappropriation in the tech world.

6. Duplicity (2009)

IP issue: Misuse of trade secrets

Julia Roberts and Clive Owen star as former spies entangled in a high‑gloss battle between two rival corporations. Their mission? Steal a secret formula for a revolutionary new product. Duplicity is a witty, twist‑filled example of trade secret theft at its most glamorous: secure labs, corporate paranoia and double‑crosses served with champagne all culminating in an epic gun fight at the Gugenheim (an average Tuesday afternoon for an IP lawyer).

7. Flash of Genius (2008)

IP issue: Patent infringement

This biographical drama tells the story of Robert Kearns, a college professor who invented the intermittent windshield wiper and then spent decades fighting major automakers who are alleged to have used his invention without permission. The resulting legal battle, grounded in patent law, is a David v Goliath story.

8. Joy (2015)

IP issue: Invention and product protection

Jennifer Lawrence stars as Joy Mangano, the inventor of the Miracle Mop. The film follows her struggle to turn her patented innovation into a commercial success while facing copycats, manufacturing challenges and contract disputes. For any budding entrepreneur, Joy is a reminder that protecting and commercialising IP requires not only creativity, but resilience.

9. The Prestige (2006)

IP issue: Trade Secrets

An often overlooked Christopher Nolan film, few movies capture the power and peril of trade secrets as vividly as The Prestige. The rivalry between magicians Robert Angier and Alfred Borden escalates into obsession when Angier becomes consumed with uncovering the secret behind Borden’s show‑stopping illusion, The Transported Man. In a profession where a trick’s mechanics are its most valuable assets, this clandestine knowledge becomes the ultimate prize.

10. Air (2023)

IP issue: Licensing negotiations

Air centres on a high‑stakes licensing deal for Michael Jordan’s name, with Michael Jordan’s mother ultimately negotiating a royalty of sales. The film shows Nike’s efforts to secure the rights that would eventually underpin the Air Jordan empire.

Honourable Mention: Nosferatu (1922)

IP issue: Copyright infringement

Not a film about IP, but itself a major IP landmark. Nosferatu was an unauthorised adaptation of Bram Stoker’s Dracula. Bram Stoker’s estate promptly sued for copyright infringement, being awarded an injunction and destruction of all copies of the film. Thankfully for horror fans, some survived. It remains a testament to the enduring risks of disregarding copyright.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>