Intellectual Property
Contents
Key contacts
Key anticipated events
January
- 5 January 2026: New HFSS advertising restrictions came into force
- 18 March 2026: Publication of full report and impact assessment on AI and copyright consultation
- 1 April 2026: UK Intellectual Property Office (UKIPO) fees increase
January
2026
March
2026
April
2026
Legislation
HFSS and less healthy foods advertising restrictions
Over the last few years, the Government has introduced various measures to try and tackle obesity, including restricting the promotion and advertising of less healthy foods.
In particular, changes to sections 5 and 6 of The Food (Promotion and Placement) (England) Regulations 2021 (Promotions Regulations) came into force on 1 October 2025 and changes to The Communications Act 2003 via The Health and Care Act 2022 (Advertising Regulations) which came into force on 5 January 2026.
The Promotions Regulations ban volume price promotions on ‘Less Healthy Foods’. This includes any of the following types of offers: ‘3 for the price of 2’, ‘3 for £10’, ‘buy 6 and save 25%’, ‘buy a newspaper and get a free chocolate bar’ or ‘50% extra free’.
The Advertising Regulations ban the advertising of ‘identifiable Less Healthy Foods’ on television between 5.30am and 9pm and in online paid-for advertising at any time.
In order to be a ‘Less Healthy Food’ it must:
- fall into one of the 13 product categories; and
- score four or above for food, or one or above for drink when applying the Nutrient Profiling Model and technical guidance
There is some slight incongruity between the products covered by the 13 categories in the Promotions Regulations and Advertising Regulations, but they are broadly aligned.
On 4 December 2025, the Advertising Standards Agency (ASA) also issued binding guidance in relation to the advertising of high in fat, sugar or salt (HFSS) products which fall within its remit.
Implications for businesses
- The Promotions Regulations affect any business in England with more than 50 employees and are applicable in England only for the time being
- The Advertising Regulations affect any business that employs more than 250 employees and are applicable in England, Wales, Scotland and Northern Ireland
- Given broad range of products included in 13 categories (everything from ‘morning pastries’, ‘roast potatoes’ to ‘ready meals’) and the vast increase in online adverting in recent years, including through the use of influencers, many businesses will be affected by this
Actions for businesses to consider
- Focussing on brand only advertising on television between restricted hours and in paid online advertising, noting that brand ads must not feature any ‘identifiable Less Healthy Foods’
- Increased use of organic online content
- Increased use of Search Engine Optimisation
- Increased use of alternative media channels not caught by new regulations including radio and out of home advertising (although earlier HFSS advertising restrictions would still apply to these channels)
Further details
For further details you can find the ASA’s guidance here.
Author: Emma Bacon
News
AI and copyright consultation
Between 17 December 2024 and 25 February 2025, the Government ran a consultation on the intersection between copyright protection and AI, specifically asking how the use of copyright works to train AI models should be governed.
On 15 December 2025, the Government published its first update following the consultation. It disclosed that only 3% of responses supported the Government's preferred option of an AI-friendly ‘opt-out’ system (whereby copyright owners would have to actively opt-out to prevent their works from being used to train AI models). A significant majority of responses (88%) supported a mandatory licensing regime, but this is not favoured by AI developers. The Government says it still wants to try and balance the potential for growth offered by AI against the rights and interests of the creative industries, but how exactly it proposes to do that remains a mystery, especially given the stark rejection of its initial proposals.
The lack of clarity is compounded by the fact that the High Court decision in Getty Images v Stability AI [2025] EWHC 2863 (Ch) did not directly engage with the issue of training AI models using copyright works and is also subject to appeal on the issue of secondary copyright infringement.
The Government is due to provide its full report and impact assessment relating to the consultation by 18 March 2026.
For further details you can see the Government’s initial response here.
UKIPO fees to increase on 1 April 2026
The UKIPO has announced that it will be increasing all official fees for trade marks, patents and designs by an average of 25% from 1 April 2026.
In view of this, now is a good time to review IP portfolios, consider new filings, and apply for advance renewal of IP rights to save costs.
For further details you can see the UKIPO press release here.
Author: Jane Kennedy
Design consultation
In September 2025, the UKIPO launched a wide-ranging consultation regarding the future of registered and unregistered design protection in the UK, suggesting that significant changes could be on the horizon.
The aftermath of Brexit, combined with CJEU authorities from just before the end of the withdrawal period which directly conflict with UK copyright law, has left the UK with a complicated patchwork of protection for designs.
The proposed changes include:
- an enhanced search and examination procedure for new UK design filings
- a single consolidated unregistered design right, which is likely to be shorter in duration than the current UK unregistered design right but longer than the supplementary design right created following Brexit
- potential for changes to copyright protection afforded to ’works of artistic craftsmanship’
Implications for businesses
The main goals of the proposals are to reduce the number of anti-competitive design filings (that is filings for generic or obviously invalid designs). The changes are likely to result in a more robust registered design regime in the UK, but one which is also more expensive and time-consuming.
Actions for businesses to consider
Businesses should therefore act now to secure registered design protection for eligible products, while the regime continues to be very quick and cost-effective.
Further details
For further details you can visit the UKIPO consultation here.
Author: Lloyd Lane
Case law
Getty Images v Stability AI
The UK High Court’s decision in Getty Images v Stability AI [2025] EWHC 2863 (Ch) highlights the difficulties of reconciling decades old intellectual property law with the fast-paced development of generative AI. The case, closely watched by both creative and tech sectors, sets some boundaries for trade mark and copyright protection when AI models are trained on third-party works and generate content derived from them. What does this mean for rights holders, AI developers, and anyone using AI-generated content?
Getty Images (Getty), a global leader in stock photography, brought proceedings against Stability AI, the developer of the ’Stable Diffusion’ model. Getty alleged that millions of its images - including those bearing its iconic watermarks - were used without consent to train the AI, and that the model could generate synthetic images featuring Getty’s registered trade marks. Claims included trade mark infringement, passing off, and secondary copyright infringement.
Key legal issues were:
- Trade mark infringement: Did AI-generated images with Getty watermarks infringe registered trade marks under the Trade Marks Act 1994 (TMA 1994)?
- Secondary copyright infringement: Was the Stable Diffusion model itself an ’infringing copy’ under the Copyright, Designs and Patents Act 1988, given its training on copyright works (albeit this training took place outside the UK)?
- Passing off: Did the generation of images with Getty’s watermarks amount to actionable misrepresentation?
Summary of the decision
Trade mark infringement
The court found that certain versions of Stable Diffusion, when accessed via certain platforms (DreamStudio and the Developer Platform), could generate images with watermarks identical or highly similar to Getty’s and iStock’s registered marks. This amounted to trade mark infringement under sections 10(1) and 10(2) of the TMA 1994, but only for specific instances and not for later versions (such as SD XL and v1.6). The court emphasised that infringement depended on the clarity and recognisability of the synthetic watermark and did not extend to ’garbled’ or distorted signs. It rejected claims under section 10(3) (reputation) due to insufficient evidence of detriment to the distinctive character or reputation of the marks, or of unfair advantage.
Secondary copyright infringement
Getty’s claim that the AI model itself was an ’infringing copy’ was dismissed. The judge held that, under UK law, an ’infringing copy’ must contain an infringing copy of the original work. Since Stable Diffusion’s model weights (the learned instructions for generating new images) did not store or reproduce the original images, and the training occurred outside the UK, there was no infringement.
Passing off
The court declined to address passing off in detail, noting that the outcome would not differ from the trade mark analysis.
Remedies
Getty succeeded only in part, with findings limited to specific instances of trade mark infringement. Claims for additional damages and secondary copyright infringement were dismissed.
Permission to appeal
On 16 December 2025, Getty was granted permission to appeal to the Court of Appeal in relation to the issue of secondary copyright infringement, so this case will continue to rumble on throughout 2026.
Implications for businesses
- For rights holders: trade mark owners can succeed against AI developers where synthetic outputs reproduce registered marks in a way likely to cause confusion—but only if the evidence is clear and not ’contrived’. Copyright claims against AI models trained outside the UK face significant hurdles
- For AI developers: technical measures, such as watermark filtering, can be effective in limiting liability. The court was cautious not to extend liability for AI-generated outputs beyond what the evidence and statutory language support
- For the industry: the case leaves unresolved the ’burning issue’ of whether training Stability Diffusion would have amounted to primary infringement of copyright in the UK had training taken place here
Further details
You can access a copy of the full judgment here: Getty Images v Stability AI [2025] EWHC 2863 (Ch)
Author: Simon Barker
Nadorcott v Asda
Nadorcott SAS is suing Asda for infringement of their Plant Breeder’s Right (PBR) in a specific type of mandarin. This is a novel case for English courts with potentially far-reaching implications for businesses with no connection with growing produce but who simply sell harvested materials.
In 2023, Nadorcott reportedly wrote to the UK’s major supermarkets alleging that the sale of ‘Tang Gold’ mandarins amounted to an infringement of its PBR.
On 19 January 2024, Nadorcott sued Sainsburys, and the case settled on confidential terms in October 2024.
Following this, on 2 January 2025, Nadorcott issued proceedings against Asda. In response, Asda applied to invalidate the PBR and asked the court to suspend the infringement proceedings until validity had been determined. The court rejected Asda’s application, and the infringement and invalidity cases proceeded in parallel. The trial on infringement was heard at the end of November 2025, and a decision is expected in early 2026.
An interesting element of this case is that Nadorcott has targeted the end retailers of Tang Gold rather than the growers or even the importers. However, PBRs can only be enforced against harvested materials if the proprietors have not had reasonable opportunity to exercise their rights in relation to the unauthorised use of propagating materials.
Implications for businesses
The case will be important for the development of the UK plant variety rights law post-Brexit. It is an important reminder to businesses that many IP rights are strict liability, meaning that knowledge of any wrongdoing is not necessarily required to establish liability.
Further details
You can access a copy of decisions from pre-trial applications in the case here:
Nador Cott Protection SAS v Asda Stores Ltd & Anor [2025] EWHC 941 (Pat)
Nador Cott Protection SAS v Asda Stores Ltd & Anor (PTR Judgment) [2025] EWHC 2896 (Pat)
Author: Lloyd Lane
Emotional Perception AI – Supreme Court appeal
This case concerns the patentability of AI models, and the hurdles posed by the exclusions for patentability for computer programs per se. Given the significant financial investment involved in creating AI models, it is important to understand the form and scope of any IP protection which might apply to them.
Computer programs as such are excluded from patentability, and this had previously been a common ground under which AI inventions and ANNs were rejected by the UKIPO. However, this exclusion does not apply where a computer program has a technical effect outside the computer.
The invention in question was an ANN which was trained to perceive semantic similarity or dissimilarity between media files, with a view to providing appropriate recommendations to users.
The High Court held that:
- the invention was not a computer program as a physical version of the model was possible; and
- even if it was a computer program, it was not a computer program ‘as such’ due to its technical effect
The Court of Appeal reversed the High Court’s decision and held that the invention was excluded from patentability as a computer program.
The Supreme Court heard the appeal on 21-22 July 2025. A decision is expected in early 2026.
Implications for businesses
The protection afforded to AI models (and works created by AI models) remains a vexed question. Whatever the outcome of the appeal to the Supreme Court it is likely that fresh legislation will be required to bring clarity regarding the protection of AI models.
Further details
You can access the Supreme Court case summary page here: Emotional Perception AI Limited (Appellant) v Comptroller General of Patents (Respondent)
The Court of Appeal decision under appeal can be found here: Comptroller General of Patents, Designs and Trade Marks v Emotional Perception AI Ltd [2024] EWCA Civ 825
Author: Richard Ellis & Lloyd Lane
Dairy UK v Oatly (Post Milk Generation)
The long-running dispute between Dairy UK and Oatly concerns whether Oatly should be prohibited from using the term ’milk’ in its trade mark ’POST MILK GENERATION’ in respect of its oat-based drinks and related products. The Supreme Court decision is expected in early 2026.
The core issue in this case is whether the trade mark ’POST MILK GENERATION’ contravenes Regulation (EU) No 1308/2013 (Regulation), which has effect in the UK as EU retained Law, and which reserves use of the term ’milk’ in ’definitions’, ’designations’ and ’sales descriptions’, exclusively for animal-derived products.
Oatly contends that the phrase ’POST MILK GENERATION’ when used as a trade mark refers to a cultural movement rather than the product itself and is therefore not a ’definition’, ’designation’ or ’sales description’ and thus does not contravene the Regulation.
Dairy UK argues that ’designation’ should be interpreted broadly as any term that refers to a product, meaning Oatly’s trade mark for oat-based products is contrary to the Regulation.
Summary of the decision
Previous rulings have gone both ways:
- IPO (Jan 2023): sided with Dairy UK and invalidated the trade mark
- High Court (Dec 2023): agreed with Oatley and reinstated the trade mark, finding ’POST MILK GENERATION’ was not a ’designation’
- Court of Appeal (Nov 2024): overturned the High Court, ruling that ’designation’ includes trade marks and reinstated the IPO’s decision to invalidate Oatley’s trade mark
The Supreme Court hearing took place on 10 December 2025, with judgment anticipated in early 2026. The decision will clarify whether plant-based brands can incorporate dairy-related terms like ’milk’ in trade marks.
Implications for businesses
If the Court of Appeal’s interpretation stands, terms such as ’milk’, ’cream’, ’butter’, and ’cheese’ cannot appear in trade marks for non-dairy products, even in figurative or cultural contexts.
Plant-based brands may need to pivot to alternative descriptors (for example, ‘oat drink’) and avoid dairy-related language in slogans and trade marks.
Actions for businesses to consider
Plant based brands and retailers of plant-based products should audit existing trade marks and marketing materials for dairy-related terms, and depending on the findings of the Supreme Court, be prepared to avoid using protected terms (including milk, cream, butter, cheese, yogurt) to promote their plant-based alternatives.
Further details
You can access the Supreme Court case summary page here: Dairy UK Ltd (Respondent) v Oatly AB (Appellant) - UK Supreme Court
The Court of Appeal decision under appeal can be found here: Dairy UK Ltd v Oatly AB [2024] EWCA Civ 1453
Author: Paul Taylor
Key contact
Other authors
Jane Kennedy
Managing Associate - Chartered UK Trade Mark Attorney
Simon Barker
Partner & Head of Intellectual Property
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