Getty Images (US) Inc and others v Stability AI Ltd - The Trial
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| Jane Lambert |
I first mentioned this litigation in Copyright and Artificial Intelligence - Getty Images (US) Inc and others v Stability AI Ltd. on 12 Dec 2023. In that article, I discussed an unsuccessful application by Stability AI Ltd ("Stability") to strike out the claim by Getty Images (US) Inc. and others ("Getty") for copyright, database right and trade mark infringement and passing off under CPR Part 24 and CPR 3.4 in Getty Images (US) Inc and others v Stability AI Ltd [2023] EWHC 3090 (Ch) (1 Dec 2023). Getty had alleged that Stability had scraped millions of high-quality photographic images of such subjects as world events, sporting moments, celebrities, architecture, nature and travel created by hundreds of thousands of photographers over many years and in which copyright was likely to subsist to develop and train its deep learning AI model known as "Stable Diffusion." The action came on for trial before Mrs Justice Joanna Smith between 9 and 30 June 2025. During the trial, Getty abandoned its claims for infringement of database rights and primary infringement of copyright but continued with the rest. In para [758] of her judgment in Getty Images (US) Inc and others v Stability AI Ltd (Rev1) [2025] EWHC 2863 (Ch), which she handed down on 4 Nov 2025, the learned judge found for Getty on aspects of their trade mark claim but not on the rest.
Trade Marks
Getty Images (US) Inc., the first claimant, is the registered proprietor of the following trade marks:
a) word mark UKTM No. UK00911410859 ("UK859") registered on 10 December 2012 for GETTY IMAGES in respect of goods and services falling within classes 9, 42 and 45;
b) word mark UKTM No. UK00902313005 ("UK005"), registered on 24 July 2001 for GETTY IMAGES in respect of goods and services falling within classes 9, 16, 35, 38, 39, 40, 41 and 42; and
c) figurative word mark UKTM No. UK00908257925 ("UK925"), registered on 29 April 2009 for
in respect of goods and services falling within classes 9, 16, 35, 38, 39, 41, 42 and 45.
iStockphoto LP, the fifth claimant, held:
a) word mark UKTM No. UK00908257297 ("UK297"), registered on 29 April 2009 for ISTOCK in respect of goods and services falling within classes 16, 40 and 41; and
b) word mark UKTM No. UK00906776819 ("UK819") registered on 25 March 2008 for ISTOCK in respect of goods and services falling within classes 9, 35, 38, 42 and 45.
a) word mark UKTM No. UK00911410859 ("UK859") registered on 10 December 2012 for GETTY IMAGES in respect of goods and services falling within classes 9, 42 and 45;
b) word mark UKTM No. UK00902313005 ("UK005"), registered on 24 July 2001 for GETTY IMAGES in respect of goods and services falling within classes 9, 16, 35, 38, 39, 40, 41 and 42; and
c) figurative word mark UKTM No. UK00908257925 ("UK925"), registered on 29 April 2009 for
in respect of goods and services falling within classes 9, 16, 35, 38, 39, 41, 42 and 45.
iStockphoto LP, the fifth claimant, held:
a) word mark UKTM No. UK00908257297 ("UK297"), registered on 29 April 2009 for ISTOCK in respect of goods and services falling within classes 16, 40 and 41; and
b) word mark UKTM No. UK00906776819 ("UK819") registered on 25 March 2008 for ISTOCK in respect of goods and services falling within classes 9, 35, 38, 42 and 45.
Alleged Trade Mark Infringement
Getty alleged that Stability had infringed those trade marks under s.10 (1), (2) and (3) of the Trade Marks Act 1994 by reproducing watermarks that were identical or similar to the above-mentioned registered marks in some of the images that it had generated.
S.10 (1)
Mrs Justice Joanna Smith's starting point was s.10 (1):
"A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered."
"A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered."
She referred to Lord Justice Arnold's summary of the law of infringement in para [48] of his judgment in Easygroup Ltd v Nuclei Ltd [2024] FSR 9, [2023] EWCA Civ 1247:
At para [318], the judge said that the issues in dispute were (ii), (iv), (v) and (vi).
- Issue VI - Liable to affect one of the Functions of the Trade Mark
Starting with issue (vi), ladyship directed herself that Lord Justice Arnold had held in paras [30] - [34] of his judgment in Bentley 1962 Ltd v Bentley Motors Ltd [2020] EWCA Civ 1726; [2021] FSR 14 and para [116] of his judgment in Match Group LLC v Muzmatch Ltd [2023] EWCA Civ 454, [2023] 4 All ER 190, [2023] WLR(D) 199, [2023] Bus LR 1097, [2023] FSR 18, that the claimant in a s.10 (1) case benefits from a rebuttable presumption of likelihood of confusion. She noted that Stability had not sought to advance in its statement of case any argument that, notwithstanding any double identity that might be established, there had been no effect on the function of the trade mark such that the presumption should be rebutted.
- Issue II - Use of the Sign in the Course of Trade
Turning to issue (ii), the learned judge referred to s.10 (4) of the Act:
"For the purposes of this section a person uses a sign if, in particular, he—
(a) affixes it to goods or the packaging thereof;
(b) offers or exposes goods for sale, puts them on the market or stocks them for those purposes under the sign, or offers or supplies services under the sign;
(c) imports or exports goods under the sign;
(ca) uses the sign as a trade or company name or part of a trade or company name;
(d) uses the sign on business papers and in advertising
(e) uses the sign in comparative advertising in a manner that is contrary to the Business Protection from Misleading Marketing Regulations 2008."
"For the purposes of this section a person uses a sign if, in particular, he—
(a) affixes it to goods or the packaging thereof;
(b) offers or exposes goods for sale, puts them on the market or stocks them for those purposes under the sign, or offers or supplies services under the sign;
(c) imports or exports goods under the sign;
(ca) uses the sign as a trade or company name or part of a trade or company name;
(d) uses the sign on business papers and in advertising
(e) uses the sign in comparative advertising in a manner that is contrary to the Business Protection from Misleading Marketing Regulations 2008."
She considered para [56] of Lord Justice Arnold's judgment in Montres Breguet SA v Samsung Electronics Co Ltd [2023] EWCA Civ 1478, [2024] ETMR 13:
Referring to paras [172] to [173] of Lord Justice Kitchin's judgment in Merck KGaA v Merck Sharp & Dohme Corp [2018] ETMR 10, [2017] EWCA Civ 1834 and paras [20] to [27] of the CJEU's judgment in Case C-17/06 Céline SARL v. Céline SA [2007] EUECJ C-17/06, [2007] EUECJ C-17/6, [2007] ETMR 80, [2007] ECR I-7041, ECLI:EU: C:2007:497, EU:C:2007: 497, Mrs Justice Joanna Smith said at [324] that use of a sign "in relation to" goods and services means use "for the purposes of distinguishing" the goods and services in question from those of other suppliers, and use such as to create the impression that there is a material link in the course of trade between the goods or services concerned and the undertaking from which those goods or services originate.
She added that it was clear from those passages in Céline that use (without more) of a business or trade name will not be in relation to goods and services because:
[22] Conversely, there is use 'in relation to goods' within the meaning of Article 5 (1) of the directive where a third party affixes the sign constituting his company name, trade name or shop name to the goods which he markets (see, to that effect, Arsenal Football Club, paragraph 41, and Adam Opel, paragraph 20)".
[23] In addition, even where the sign is not affixed, there is use 'in relation to goods or services' within the meaning of that provision where the third party uses that sign in such a way that a link is established between the sign which constitutes the company, trade or shop name of the third party and the goods marketed or the services provided by the third party".
On that point, Lord Justice Kitchin had said at para [275] of Merck that:
Citing para 16-037 of Kerly on Trade Marks, her ladyship reminded herself that the issue of how the use of the sign will be perceived by the average consumer is a matter for the court to assess on the evidence.
- Issue IV - Identical to the Trade Mark
The judge noted at para [328] that none of the following propositions was disputed:
(i) The CJEU had held in para [52] of its judgment in Case C-291/0 S.A. Société LTJ Diffusion v Sadas Vertbaudet SA [2003] CEC 283, [2003] EUECJ C-291/00, [2003] ECR I-2799, [2003] ETMR 83, [2003] EUECJ C-291/, [2003] FSR 34 that the perception of identity between sign and mark must be assessed globally from the perspective of the average consumer.
(ii) The Court also stated in para [54] of LTJ Diffusion that a sign will be identical with the registered trade mark "where it reproduces, without any modification or addition, all the elements constituting the trade mark or where, viewed as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer". In Reed Executive Plc v Reed Business Information Ltd [2004] EWCA Civ 159, [2004] Info TLR 55, [2004] Masons CLR 29, (2004) 27(6) IPD 27058, [2004] RPC 40, [2004] ETMR 56 Lord Justice Jacob observed at para [29] that the Advocate General's opinion was helpful in that case in indicating the sort of difference which would be so minute as to leave the mark and sign 'identical' and that which would not:
In WebSphere Trade Mark [2004] EWHC 529 (Ch) [2004] FSR 39, Mr Justice Lewison held that the presence of a hyphen in the sign Web-Sphere was an insignificant difference from the word mark WEBSPHERE, which would go unnoticed by the average consumer.
(iii) Citing para [27] of Lord Justice Jacob's judgment in Reed Executive plc v Reed Business Information Ltd [2004] EWCA Civ 159, [2004] RPC 40 at para [49] of Easygroup Ltd v Nuclei Ltd [2024] FSR 9, [2023] EWCA Civ 1247, Mrs Justice Joanna Smith noted that in the case of a word mark, both the visual and aural impression must be considered.
(iv) Referring to para [27] of Reed Executive and para [49] of Easygroup, her ladyship saw no reason to suppose that the Court in LTJ Diffusion meant to soften the edges of "strict identity" very far, because even where a mark and a sign are not identical, the proprietor of the mark will be protected if there is likelihood of confusion.
- Issue V - Identical Goods and Services
She reminded herself that trade mark specifications are concerned with use in trade. When construing a word used in a trade mark specification, she reminded herself of Mr Justice Jacob's observation at page 289 of his judgment in British Sugar Plc v James Robertson & Sons Ltd [1996] RPC 281 that the court is concerned with "how the product is, as a practical matter, regarded for the purposes of trade."
The judge noted that Lord Justice Arnold had said in Easygroup that "[w]hether there is identity of services depends in part on the interpretation of the specification of services of the trade mark" and that he had cited with approval the following passage from Reed Executive:
"…specifications for services should be scrutinised carefully and they should not be given a wide construction covering a vast range of activities. They should be confined to the substance, as it were, the core of the possible meanings attributable to the rather general phrase".
She added that the Supreme Court had also approved that passage in Skykick UK Ltd v Sky Ltd [2024] UKSC 36, [2025] Bus LR 251 when considering whether cloud migration was an electronic mail service. She recalled Lord Kitchin's observation at para [365] of his judgment that:
"The correct approach, as a matter of principle, in considering a specification of services which is defined by terms which are not clear or precise, is to confine the terms used to the substance or core of their possible meanings: see, for example, Reed Executive pic v Reed Business Information Ltd [2004] EWCA Civ 159; [2004] RPC 40, at para 43. So too, if a specification of goods is defined by terms which are ambiguous, then it should be confined to those goods which are clearly covered. These principles are consistent with first, the requirement that the specifications of goods and services must be clear and precise so that others know what they can and cannot do; and secondly, general fairness because any ambiguity is the responsibility of the owner of the mark. If despite this, the words used are still unclear so that they cannot be interpreted, then it is permissible to disregard them. But, in my opinion, that will rarely be the case".
"The correct approach, as a matter of principle, in considering a specification of services which is defined by terms which are not clear or precise, is to confine the terms used to the substance or core of their possible meanings: see, for example, Reed Executive pic v Reed Business Information Ltd [2004] EWCA Civ 159; [2004] RPC 40, at para 43. So too, if a specification of goods is defined by terms which are ambiguous, then it should be confined to those goods which are clearly covered. These principles are consistent with first, the requirement that the specifications of goods and services must be clear and precise so that others know what they can and cannot do; and secondly, general fairness because any ambiguity is the responsibility of the owner of the mark. If despite this, the words used are still unclear so that they cannot be interpreted, then it is permissible to disregard them. But, in my opinion, that will rarely be the case".
"[46]. …Mr Howe contends that a specification of goods or services cannot change its meaning with time. Mr Hobbs submits that it can—if the 'core' nature of the service changes with time, then the meaning changes too.
[47] I have no doubt that Mr Howe is right. One can test the point best by reference to a registration qualified by the words "included in this Class". From time to time, though rarely, the class in which a particular kind of article is put is changed by international agreement. If that happens it is inconceivable that the trade mark owners' rights could be changed. 'Included in Class X' must mean 'included at the time of registration.'
[48] So also for a word or phrase which changes its meaning over time. But that must in practice be very rare. Indeed I know no instance of it in any reported case. The ordinary case—and I think this is one—is where some new variant of an article or service comes into existence after registration. The issue then is whether that new article or service falls within the meaning of the existing specification. Columbia Graphophone's Trade Marks (1932) 49 RPC 621 is a good example of a new article falling within an old specification. The specification of goods of the mark under attack was 'all goods in Class 8'. Class 8 (of the old classification, bizarrely taken from the classification used for the Great Exhibition) quaintly read 'philosophical instruments, scientific instruments and apparatus for useful purposes; instruments and apparatus for teaching'. An application for partial rectification was made on the grounds of non-use. The excision sought was essentially for 'cinematograph films, talking and silent' (my précis). The trade mark owner, a record company, sought to justify the non-user by saying that talkie films had only just become possible and that amounted to special circumstances. The argument failed and excision was ordered. There was an express excision from the specification of a kind of article (talkies) that did not exist at the time of registration" (emphasis added).
- Applying the Law to the Facts
As Stability had submitted that Daimler, Google France and Coty supported its contention that it had not used the first and fifth claimants' registered marks, Mrs Justice Joanna Smith reviewed those cases. She agreed with Getty that Stability, unlike Google, had used the sign for its own commercial communication, namely the communication that bore those claimants' watermarks in the form of the output images that Stability's software generated. Stability argued that it was the users who generated the images and not the system but the judge held that that was only partially true. Stability had trained its model and arranged the "weights" or model parameters that define the network connections in the model and are learnable parameters controlling the functionality of the network. In her ladyship's view, this went beyond merely creating the technical conditions necessary for the use of the watermarks. The provision of access to the system to users could not be equated merely with the storage of goods by Amazon, as in Coty, with allowing advertisers to use the signs as in Google France, or with eBay making its online marketplace available to customers as in L'Oréal.
After comparing samples of images bearing the watermarks with the registered marks, her ladyship found identity of Mark and Sign in relation to the iStock marks at para [422], but no evidence of any real-world use of a sign that was identical to the Getty Images mark. She found for the fifth claimant in respect of iStock watermarks generated by users of certain versions of the model but dismissed the claims in respect of the other marks.
S.10 (2)
The learned judge referred to s.10 (2) (b) of the Trade Marks Act 1994:
(a) …
(b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered,
there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark."
Citing para [26] of Lord Justice Arnold's judgment in Muzmatch, she directed herself that a claimant must satisfy six requirements in order to establish infringement under s 10 (2):
"(i) there must be use of a sign by a third party within the relevant territory; (ii) the use must be in the course of trade; (iii) it must be without the consent of the proprietor; (iv) it must be of a sign which is at least similar to the trade mark; (v) it must be in relation to goods or services which are at least similar to those for which the trade mark is registered; and (vi) it must give rise to a likelihood of confusion."
"(i) there must be use of a sign by a third party within the relevant territory; (ii) the use must be in the course of trade; (iii) it must be without the consent of the proprietor; (iv) it must be of a sign which is at least similar to the trade mark; (v) it must be in relation to goods or services which are at least similar to those for which the trade mark is registered; and (vi) it must give rise to a likelihood of confusion."
The first three requirements had already been addressed. Stability had conceded (iv) and the judge made a finding that requirement (v) had been satisfied. The only requirement to be addressed was (vi), that is to say, the likelihood of confusion.
Her ladyship quoted the standard summary of the principles established by the authorities for assessing the likelihood of confusion in para [27] of Lord Justice Arnold's judgment in Muzmatch:
"(a) the likelihood of confusion must be appreciated globally, taking account of all relevant factors;
(b) the matter must be judged through the eyes of the average consumer of the goods or services in question, who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind, and whose attention varies according to the category of goods or services in question;
(c) the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details;
(d) the visual, aural and conceptual similarities of the marks must normally be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components, but it is only when all other components of a complex mark are negligible that it is permissible to make the comparison solely on the basis of the dominant elements;
(e) nevertheless, the overall impression conveyed to the public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components;
(f) and beyond the usual case, where the overall impression created by a mark depends heavily on the dominant features of the mark, it is quite possible that in a particular case an element corresponding to an earlier trade mark may retain an independent distinctive role in a composite mark, without necessarily constituting a dominant element of that mark;
(g) a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa;
(h) there is a greater likelihood of confusion where the earlier mark has a highly distinctive character, either per se or because of the use that has been made of it;
(i) mere association, in the strict sense that the later mark brings the earlier mark to mind, is not sufficient;
(j) the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense; and
(k) if the association between the marks creates a risk that the public might believe that the respective goods or services come from the same or economically-linked undertakings, there is a likelihood of confusion."
Applying those principles, she found at [464] that the global assessment pointed to a likelihood of confusion on the part of a significant proportion of the relevant public as a result of the appearance of watermarks for the following reasons:
"i) It is common ground that the Marks have a high degree of distinctive character.
ii) There is a very high degree of similarity between Mark and Sign having regard to these specific examples.
iii) There is identity (or, if not identity, a high degree of similarity) between goods and services.
iv) Two classes of average consumer (downloading the Model and accessing it via the Developer Platform) will be technically savvy and will be paying at least a moderate degree of attention. Owing to their understanding of how AI models work, including their understanding of how they are trained, they are unlikely to believe that Getty Images is supplying the synthetic images but, as I have found, a significant proportion will think that there is a connection or material link between Stability and Getty Images, including because they will think that Stable Diffusion was trained on Getty Images Content "under license" from Getty Images. The October 2022 Sales Force Message to which I have referred above provides support for such confusion in the real world.
v) Average consumers accessing the Model using DreamStudio will be less technically astute. A significant proportion, paying a moderate degree of attention, will think that a generated image bearing a watermark* has been supplied by Getty Images or that Stable Diffusion has been trained on Getty Images Content under license from Getty Images, or that there is some other economic link between Getty Images and Stability. I agree with Getty Images that the average consumer in this class (or a significant proportion) would not assume that a major corporation such as Getty Images would allow its assets and signs to be used by third parties without its permission. Even assuming that such consumer was not confused as to the origin of the image, the natural assumption would be that the synthetic output was generated by a company that had some form of licensing or other economic arrangement in place with Getty Images - there would thus be confusion as to the licensing position and thus the extent of any association with the Marks.
vi) Whatever the access mechanism, I do not consider the context in which the average consumer encounters the Signs to undermine this conclusion for all the reasons I have already explained, albeit in a slightly different context - Stability accepted in closing that the relevant factors going to "use in relation to goods and services" are the same as those relied upon in connection with the likelihood of confusion. The average consumer will not think that he or she has full control over the generation of images bearing watermarks* or that he or she bears responsibility for the appearance of the watermarks*. Although the levels of technical sophistication amongst the classes of average consumer will be different, I find a likelihood of confusion in relation to each class (or a significant proportion of each class) for all the reasons I have given.
vii) Furthermore, I do not consider that Stability's argument as to the "garbled nature of the sign" assists for reasons set out above. The global assessment is highly fact-sensitive and the specific Signs with which I am concerned are not so garbled as to alert the average consumer to an issue.
viii) As I have found, many consumers will be familiar with "the regime" of using watermarks* (as described by Ms Cameron) to indicate that Content must be paid for, but this does not preclude the likelihood of confusion over the appearance of images displaying a Getty Images or an iStock watermark*.
ix) It does not matter that the Sign would only be encountered in a post-sale context. That context is both realistic and representative."
"i) It is common ground that the Marks have a high degree of distinctive character.
ii) There is a very high degree of similarity between Mark and Sign having regard to these specific examples.
iii) There is identity (or, if not identity, a high degree of similarity) between goods and services.
iv) Two classes of average consumer (downloading the Model and accessing it via the Developer Platform) will be technically savvy and will be paying at least a moderate degree of attention. Owing to their understanding of how AI models work, including their understanding of how they are trained, they are unlikely to believe that Getty Images is supplying the synthetic images but, as I have found, a significant proportion will think that there is a connection or material link between Stability and Getty Images, including because they will think that Stable Diffusion was trained on Getty Images Content "under license" from Getty Images. The October 2022 Sales Force Message to which I have referred above provides support for such confusion in the real world.
v) Average consumers accessing the Model using DreamStudio will be less technically astute. A significant proportion, paying a moderate degree of attention, will think that a generated image bearing a watermark* has been supplied by Getty Images or that Stable Diffusion has been trained on Getty Images Content under license from Getty Images, or that there is some other economic link between Getty Images and Stability. I agree with Getty Images that the average consumer in this class (or a significant proportion) would not assume that a major corporation such as Getty Images would allow its assets and signs to be used by third parties without its permission. Even assuming that such consumer was not confused as to the origin of the image, the natural assumption would be that the synthetic output was generated by a company that had some form of licensing or other economic arrangement in place with Getty Images - there would thus be confusion as to the licensing position and thus the extent of any association with the Marks.
vi) Whatever the access mechanism, I do not consider the context in which the average consumer encounters the Signs to undermine this conclusion for all the reasons I have already explained, albeit in a slightly different context - Stability accepted in closing that the relevant factors going to "use in relation to goods and services" are the same as those relied upon in connection with the likelihood of confusion. The average consumer will not think that he or she has full control over the generation of images bearing watermarks* or that he or she bears responsibility for the appearance of the watermarks*. Although the levels of technical sophistication amongst the classes of average consumer will be different, I find a likelihood of confusion in relation to each class (or a significant proportion of each class) for all the reasons I have given.
vii) Furthermore, I do not consider that Stability's argument as to the "garbled nature of the sign" assists for reasons set out above. The global assessment is highly fact-sensitive and the specific Signs with which I am concerned are not so garbled as to alert the average consumer to an issue.
viii) As I have found, many consumers will be familiar with "the regime" of using watermarks* (as described by Ms Cameron) to indicate that Content must be paid for, but this does not preclude the likelihood of confusion over the appearance of images displaying a Getty Images or an iStock watermark*.
ix) It does not matter that the Sign would only be encountered in a post-sale context. That context is both realistic and representative."
In the light of those findings, she considered Getty to have made out its case on s.10 (2) infringement in relation to:
(i) Version 1.x of the model in respect of the iStock marks; and
(i) Version 1.x of the model in respect of the iStock marks; and
(ii) Version 2.1 in respect of Getty Images marks.
S.10 (3)
Once again, the judge started with the statutory provision:
"(3) A person infringes a registered trade mark if he uses in the course of trade, in relation to goods or services, a sign which—
(a) is identical with or similar to the trade mark,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark."
"(3) A person infringes a registered trade mark if he uses in the course of trade, in relation to goods or services, a sign which—
(a) is identical with or similar to the trade mark,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark."
She also referred to s.10 (3A):
"[s]ubsection (3) applies irrespective of whether the goods and services in relation to which the sign is used are identical with, similar to or not similar to those for which the trade mark is registered".
"[s]ubsection (3) applies irrespective of whether the goods and services in relation to which the sign is used are identical with, similar to or not similar to those for which the trade mark is registered".
She directed herself at [470] that "[t]he aim of section 10 (3) is to protect the reputation of a registered trade mark from damage in the form of unfair advantage."
Referring to para [55] of Lord Justice Arnold's judgment in Muzmatch, she said at [471] that
Stability referred to Lord Justice Arnold's observation at para [51] of his judgment in Thatchers Cider Company Ltd v Aldi Stores Ltd [2025] EWCA Civ 5:
Passing off
Secondary Infringement
Although Getty abandoned its claim for primary infringement of copyright, it continued to argue that Stability was a secondary infringer. It argued that Stability had imported into the United Kingdom an article which was and was known to be an infringing copy contrary to s.22 of the Copyright, Designs and Patents Act 1988 ("CDPA"). It also alleged that Stability had possessed in the course of business, sold or let for hire, offered or exposed for sale or hire exhibited in public or distributed in the course of a business or distributed otherwise than in the course of a business to such an extent as to affect prejudicially the claimants an article which was, and which Stability knew or had reason to believe to be, an infringing copy" contrary to s.23 of the Act. Getty alleged that that article was Stable Diffusion and that it was an "infringing copy" because it had been imported into the UK, and its making in the UK would have infringed copyright under s. 27 (3) of the CDPA.
Stability contested Getty's allegations. Mrs Justice Joanna Smith identified the following issues to be determined at para [551] of her judgment:
(i) Whether Stable Diffusion was an "infringing copy" as a matter of fact;
(i) Whether Stable Diffusion was an "infringing copy" as a matter of fact;
(ii) Whether Stability had knowledge or reason to believe that Stable Diffusion was an infringing copy; and
(iii) Whether Stability has committed secondary acts of copyright infringement contrary to s.22 and s.23 of the CDPA.
The judge considered how Stable Diffusion was trained and how it works between para [551] and para [561]. Stability's expert testified that:
"Rather than storing their training data, diffusion models learn the statistics of patterns which are associated with certain concepts found in the text labels applied to their training data, i.e. they learn a probability distribution associated with certain concepts. This process of learning the statistics of the data is a desired characteristic of the model and allows the model to generate new images by sampling from the distribution."
However, she noted at [558] that "while Stable Diffusion can and does produce images that are "distinct from the training examples", it can also produce 'images that are nearly identical (a memorized image)', and that it can produce 'images that are derived from a training image either in part or in whole (a derivative)'".
She answered it as follows in the next paragraph:
"In my judgment, it is not. It is not enough, as it seems to me, that (in Getty Images' words) 'the time of making of the copies of the Copyright Works coincides with the making of the Model' (emphasis added). While it is true that the model weights are altered during training by exposure to Copyright Works, by the end of that process, the Model itself does not store any of those Copyright Works; the model weights are not themselves an infringing copy and they do not store an infringing copy. They are purely the product of the patterns and features which they have learnt over time during the training process. Getty Images' central submission that 'as soon as it is made, the AI model is an infringing copy' is, accordingly, in my judgment, entirely misconceived.
In the light of her ladyship's findings on the law, it was not strictly necessary for me to make any determinations on the facts. Having found that Stable Diffusion was not capable of being an infringing copy, it followed that s.22 and s.23 of the CDPA were not applicable.
"In my judgment, it is not. It is not enough, as it seems to me, that (in Getty Images' words) 'the time of making of the copies of the Copyright Works coincides with the making of the Model' (emphasis added). While it is true that the model weights are altered during training by exposure to Copyright Works, by the end of that process, the Model itself does not store any of those Copyright Works; the model weights are not themselves an infringing copy and they do not store an infringing copy. They are purely the product of the patterns and features which they have learnt over time during the training process. Getty Images' central submission that 'as soon as it is made, the AI model is an infringing copy' is, accordingly, in my judgment, entirely misconceived.
In the light of her ladyship's findings on the law, it was not strictly necessary for me to make any determinations on the facts. Having found that Stable Diffusion was not capable of being an infringing copy, it followed that s.22 and s.23 of the CDPA were not applicable.
Additional Damages
Although many are disappointed that this case did not resolve the issue of whether copyright in a photo library is infringed by training an artificial intelligence model, this is still an important judgment on trade mark law, particularly liability under s.10 (1). Also important is the judge's analysis of whether Stability was liable for secondary infringement. Anyone wishing to discuss this judgment may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form at any time.
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