Welcome to the first edition of Commercial Insights. Stay informed with the latest legal news, in-depth case updates, and expert legal insights. Designed to keep you ahead in the ever-evolving world of commercial law.
Litigate or Licence? Navigating the copycat conundrum: Following the decision in Thatchers Cider Co Ltd v Aldi Stores Ltd, the UK courts are strengthening brand owners’ rights against lookalikes, favouring trade marks and design rights over passing off. Businesses must balance litigation and licensing to protect brand equity while adapting to changing consumer behaviour and discounter strategies. View >
Green claims: are we heading for a fine mess?: Fines for greenwashing could rise to eye-watering amounts under new powers for the CMA, so corporates making claims must be cautious. View >
UK Government launches new ‘AI Playbook’: In this article we provide an overview of the UK Government’s Artificial Intelligence Playbook (“AI Playbook”), published in February 2025. The AI Playbook replaces the Generative AI Framework for HMG, published in January 2024, and seeks to guide the public sector on harnessing "the power of a wider range of AI technologies safely, effectively and responsibly". View >
Cabinet Office and Government Legal Department publish New Model Contracts: DWF has worked closely with the Government Legal Department and the Cabinet Office on its review and update of the Model Services Contract (MSC), Mid-Tier Contract and Short Form Contract. View >
Breaking barriers: How venture capital can empower female entrepreneurs: Women play an increasingly central role in the global workplace and in leadership roles, exemplified by the appointment of the first female UK Chancellor in 2024. This reflects a broader shift towards greater diversity in business leadership. This article discusses the challenges and opportunities for female entrepreneurs in accessing venture capital funding in the UK. View >
Subsidy Control – government intention to increase threshold for mandatory CMA referral: On 7 April 2025, the government announced that, following consultation feedback, it plans to lift the mandatory referral threshold to the CMA from £10m to £25m. This article considers the implications of the announcement. View >
Investment in the UK Space Tech sector: The UK Space Sector is rapidly growing in 2025, and this article considers some of the legal issues which can arise in the sector.View >
Latest news
The EU Council has formerly approved the first half of its simplification package to the Corporate Sustainability Due Diligence Directive (CS3D): CS3D came into force on 25 July 2024 and requires certain companies (meeting certain thresholds in relation to their turnover and amount of employees) to enhance due diligence in their operations and supply chains and increase transparency through mandatory reporting. On 26 February 2025, the EU Commission proposed two omnibus directives to simplify CS3D. The first directive, Omnibus I, postpones the implementation of CS3D to in-scope companies by one year, pushing this back to 26 July 2028. Omnibus I was approved by the European Council on 14 April 2025 and now member states must transpose this into their national legislation by 31 December 2025. Next, the EU will consider Omnibus II, which involves more substantive legislative changes to CS3D rather than a delay in enforcement and therefore it is likely to face more opposition. The EU Council aims to finalise the simplification package soon, but companies affected by CS3D will face uncertainty until a final decision is made. Read more >
The Copyright Licensing Agency (CLA) has announced that it is developing an AI training licence which will likely be available later on in the year. The collective licence aims to provide remuneration for publishers and authors for their work in developing GenAI training and their content that might be used, especially those who are not in a position to negotiate their own licensing deals. It will also ensure that AI developers have legal certainty when using a range of content to innovate and train AI models. The CLA is working with the Publisher’s Licensing Services (PLS) and the Author’s Licensing and Collecting Society (ALCS) to develop the AI licence.Read more>
The FCA has published a summary of its AI Sprint event which took place in January 2025. The event provided a chance to discuss the opportunities and challenges of using AI in the financial services market. The summary, which was published on 23 April 2025, outlines the key themes that were covered at the event, these being regulatory clarity; trust and risk awareness; collaboration and coordination and safe AI innovation. In the coming months, the FCA’s focus will be on a safer space to innovate by expanding its existing programmes such as the Supercharged Sandbox and AI Lab. These programmes offer tools for innovation andregulatory engagement in respect of developing AI. International engagement and collaboration with other regulatorsis also part of the FCA’s focus in the near future. Read more>
The Cyber Governance Code of Practice published on 8 April by the Department for Science, Innovation and Technology provides a framework for businesses to strengthen their cybersecurity. It emphasises the importance of integrating cyber risk management into overall business strategies, assigning clear ownership of these risks, and ensuring that resources are appropriately allocated to mitigate them. The Code is directed to boards and directors of medium and large private organisations as well as public sector organisation. It also highlights the necessity of fostering a culture where all employees are aware of and accountable for cyber security practices. Additionally, it advises organisation to develop and regularly test incident response plans to ensure preparedness for potential cyber security threats. By adopting these practices, businesses can enhance their cyber resilience against cyber incidents and safeguard their operations. Read more>
The European Commission AI’s Office has launched a survey to collect examples of AI literacy initiatives from organisations, aiming to expand a dynamic repository that facilitates knowledge sharing and supports compliance with Article 4 of the EU AI Act. This article requires AI providers and users to ensure their personnel have sufficient AI literacy. The survey is open ended, with periodic closures for submission verification to main quality. Organisations are encouraged to contribute their AI literacy practices, which may include tailored training programs and collaborations with educational institutions. The repository serves as a centralised platform for businesses to benchmark their initiatives, gain insights into diverse strategies, and develop or refine their own training programs. While the repository offers valuable examples, adopting these practices does not automatically ensure compliance with the AI Act, organisations should tailor their initiatives to their specific contexts.
The Competition and Markets Authority (CMA) have issued comprehensive guidance to assist businesses in complying with the Digital Markets, Competition and Consumers Act (DMCCA) which came into effect on 6 April 2025. The CMA published their guidance on 4 April titled ‘What businesses need to know about unfair commercial practices’. This guidance aims to explain how the DMCCA strengthens rules against unfair commercial practices such as misleading actions, omissions and aggressive practices. It helps businesses understand what conduct is prohibited and how to stay compliant. It also introduces new blacklisted practices focusing on online behaviours like subscription traps, fake reviews, and hidden costs.Read more >
Ofcom's Online Safety Regulations under scrutiny - On 24 April 2025, Ofcom released its final regulations under the Online Safety Act. Children's Commissioner Dame Rachel de Souza criticized the rules for prioritizing tech firms over child safety, particularly concerning harmful content like pornography and self-harm material. Despite Ofcom's defence of the regulations as transformative, concerns persist about their efficacy and enforcement. Read more>
Government updates
Digital Markets, Competition and Consumers Act 2024 (CMA Consumer Enforcement Rules) Regulations 2025 (SI 2025/267): From 6 April 2025, the Digital Markets, Competition and Consumers Act (DMCA) will introduce stricter consumer protection rules in the UK. Key changes include banning hidden fees (“drip pricing”), prohibiting fake reviews, and requiring clearer terms for subscription services—making cancellations easier. The CMA gains new powers to impose fines of up to 10% of global turnover for breaches. Businesses must update their practices to comply and avoid significant penalties under the new regime. View >
The Home Office releases updated statutory guidance on the UK’s Modern Slavery Act 2015 under their guidance document ‘Slavery and human trafficking in supply chains: guidance for businesses’. This significant update aims to assist businesses in complying the legislation by providing comprehensive advice on preventing modern slavery within their operations and supply chains. View >
UK Government Launches AI Growth Zones to Drive Local Innovation: In February 2025, the UK government announced the launch of AI Growth Zones to accelerate technological advancement and economic growth across the country. The initiative aims to revitalise deindustrialised areas by creating new infrastructure for AI development. Local authorities are invited to submit proposals, with sites in regions like Scotland, Wales, and the North East already attracting interest. The project will foster private investment, generate thousands of jobs, and strengthen the UK’s position as a global AI leader. The Government announced it will deliver the first AI Growth Zone at Culham in Oxfordshire and, if successful, the site would host one of the UK’s largest AI data centres, beginning with 100MW of capacity with the ambition to scale to 500MW. Further announcements are expected in the coming months about future plans to accommodate these AI Growth Zones.View >
In Thatchers Cider Co Ltd v. Aldi Stores Ltd, the Court of Appeal ruled that Aldi’s “Taurus Cloudy Lemon Cider” infringed Thatchers' trade mark by creating a misleadingly similar product. Thatchers argued that Aldi’s design and branding caused confusion among consumers by resembling its own cider.
The case stemmed from Thatchers’ claim that Aldi’s cider packaging was a deliberate imitation of their established design, intended to capitalise on their brand recognition. The court ruled in favour of Aldi, finding that the similarities between the two products were not sufficient to cause consumer confusion. The decision emphasised the need for clear evidence of actual market confusion, with the court noting that Aldi's product did not infringe Thatchers' rights.
Upon appeal however, the Court of Appeal sided with Thatchers, finding Aldi’s use of similar packaging unfair, as it took undue advantage of Thatchers' brand reputation and misled consumers into associating the products. View >
The case revolved around a trade mark licence agreement between Zaha Hadid Ltd (the Company) and the Zaha Hadid Foundation (the Foundation). Clause 12 of the agreement granted only the Foundation the right to unilaterally terminate the licence, leaving the Company bound indefinitely without a clear termination right. The Company sought to end the agreement, arguing for an implied termination right and claiming the agreement was an unlawful restraint of trade.
The High Court emphasized that contract interpretation requires a comprehensive analysis of the agreement’s language and commercial context. The Court concluded that the agreement’s terms were clear: the Foundation had broad termination rights, while the Company had none. This one-sided arrangement was deemed consistent with contract’s overall structure.
The Company contended that the agreement’s indefinite nature and obligations, such as the 6% royalty on global income and a ‘best endeavours’ clauses to promote licensed services, unfairly restricted its trade freedom. However, the Court found no actionable restraint, noting that the agreement provided significant value to the Company and that the obligations were commercially reasonable and aligned with the Foundation’s legitimate interests.
The judgement underscores the necessity of explicit and precise termination provisions in contracts. For indefinite agreements, parties should consider including mutual termination rights to prevent potential imbalances. Additionally, even demanding obligations are unlikely to be deemed restraints on trade if they are proportionate, negotiations at arm’s length and serve legitimate interests. View >
Liability clauses
South East Water Limited v Elster Water Metering Limited
This case concerns a framework agreement that existed between the parties, wherein South East Water (SEW) claimed for damages due to faulty water-meter reading units that Elster provided. The claim was initially for £19 million, with an alternative indemnity claim of over £28 million, though a contractual cap was acknowledged which limited recoverable damages to £10 million. Elster applied for strike out and summary judgment of SEW’s claim.
The Court had to consider the construction of the liability provisions in the framework agreement and how this would affect SEW’s claim for damages. At first instance, the Court found that Schedule 11 of the framework agreement intended to have the effect of limiting SEW’s entitlement to claim damages in respect of faulty units.
However, on appeal, the Court held that Schedule 11 was in fact not a limitation clause and was not concerned with damages. Instead, the Schedule fixed the parties’ rights and obligations if replacement units were provided by Elster and in any event, its wording was not clear enough to be a limitation of liability. It is clear from this judgement that clear wording is needed in commercial contracts, especially where liability is concerned and one party is essentially giving up its rights in relation to what it can claim for. View >
What's on the horizon?
CMA’s consultation into Ticketmaster dynamic pricing: the CMA has been consulting with Ticketmaster following complaints regarding its sale practices with Oasis concert tickets. Whilst the investigation began in September 2024, the CMA believes that Ticketmaster has breached consumer protection law, and that the changes made to its ticket sales processes are not sufficient. The conclusion of this investigation will have important implications for consumers and businesses involved in ticket sales alike.
The case of Getty Images v Stability AI is due to be heard in the High Court in June 2025 where key copyright issues will be determined. In 2023, Getty Images brought a claim against Stability AI, alleging that the company infringed its intellectual property rights by using Getty's images to train its AI model. Getty argued that the AI-generated images were similar to its own, constituting trademark infringement and passing off, and claimed secondary infringement by asserting that Stability AI introduced the AI model to the UK public knowing that it contained infringing materials. Stability AI applied for summary judgment of this matter, but the Court held that a trial would be necessary to determine the issues at play.
Stability AI's primary defence is that the data sourcing and training for the AI model occurred outside the UK, making the claim inapplicable under UK law. They also argue that the AI tool does not retain images or copyright works, and any copyright infringement would be the responsibility of the end user, not the AI itself. Finally, Stability AI intends to rely on the concept of pastiche, which is a defence that allows imitation of other works without serving as a substitute for them. This case is significant for clarifying the position of third-party content in AI training, developing the concept of pastiche and analysing the territorial aspects of AI creation and imported articles. The trial is due to be heard in June this year.
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