The DRYROBE Case: Protecting Trade Mark Distinctiveness

Thinking about the year ahead, it is worth highlighting a recent court decision that demonstrates the importance of brand owners taking the right actions to protect the distinctiveness of their brands.

In a recent case, a competitor was found to have infringed DRYROBE’S trademark by using the name ‘D-ROBE’ for its competing product.

The competitor justified its use of this name by arguing that “dryrobe” had become shorthand for the entire product category and simply described hanging robes. So, the competitor believed that DRYROBE had become a generic term rather like ASPIRIN, ESCALATOR and THERMOS, and had lost exclusive rights in its trademark.

The Court rejected this claim, stating that DRYROBE still identifies a single commercial source, not a product category.

One reason DRYROBE won the argument is that it had, in practice, been using its mark correctly so as to protect its distinctiveness.

The company was taking active steps to address misuse of its name before it spread. It was also ensuring its marketing consistently presented DRYROBE as a brand rather than as a product description. And the company was checking that consumers still recognised its mark as indicating origin rather than a product category.

The key takeaway for brand owners is that distinctiveness must be actively maintained.

That involves setting clear brand-use guidelines and ensuring these are followed in all marketing and other activities. So, check that your trademark is being used consistently and correctly on your website, and social media channels. Even small changes can have a big impact.

And most important of all, take early enforcement action if you spot others using or misusing your trademark. This will play an important role in ensuring your trademarks remain strong.

If you are unsure whether your trade marks are being used correctly or would like to carry out a trade mark health check, we would be happy to assist.