easyGroup Limited v Easy Live (Services) Limited & or [2022] EWHC 3327 (Ch)
This case is the latest chapter in the series of trade mark infringement and passing off cases that easyGroup has brought in recent years against various parties who trade under names including the word “easy”. These Defendants had been operating an online auction bidding platform and providing back-office software for use in the auctioneering trade in the UK under the name Easy Live Auction since 2010.
easyGroup claimed infringement of five registered trade marks: easyJet, easyGroup, easyMoney, easyProperty and Easy Networks. It was alleged that there was a likelihood of confusion between each of those marks and the four signs used by the Defendants in relation to advertising, information, payment and platform services. The four signs were different stylisations of the name Easy Live Auction used at various dates and were each presented as white text on blue background. It was also alleged that the use of those signs took unfair advantage of and caused detriment to the distinctive character and repute of the Claimant’s trade marks. easyGroup further claimed passing off. The Defendants denied the claims and counterclaimed for revocation of four of the marks for non-use in relation to several categories of services included in the specifications of easyGroup’s marks.
Following a trial before Sir Anthony Mann, the counterclaim for revocation succeeded, save for one category of service in the specification of one of the Claimant’s marks. As a result, the scope of the infringement claim was significantly reduced. The Judge dismissed the infringement claim based on likelihood of confusion, due to a lack of similarity between the services, and dismissed the claim for passing off, for lack of damage. The infringement claim under s. 10(3) of the Act succeeded in relation to three of the Defendants’ signs, use of which had ceased by the time proceedings had been commenced, based on unfair advantage.
The case raises interesting points of law in relation to the application of the Brexit provisions of the Trade Marks Act to non-use counterclaims, the impact of the limitation period on the date of assessment of trade mark infringement claims and the conditions for relying on a ‘family of marks’ in support of a case on likelihood of confusion.
In a separate reserved judgment, the Court held that easyGroup should pay 35% of the Defendants’ costs.
Chris Aikens appeared as sole counsel for the Defendants