easyGroup Limited v Easyfundraising [2025] EWCA Civ 1000
easyGroup appealed the decision of Fancourt J dismissing its claims for registered trade mark infringement and passing off and revoking (either partially or wholly) certain of its marks for lack of genuine use. The Defendants have since 2005 operated an online platform for fundraising by retail under the name Easyfundraising. The appeal was heard immediately after the appeal in another case involving easyGroup (easyGroup v Easy Live (Services) No 2) before the same constitution because the first instance judges in each case reached inconsistent decisions on the same issues on revocation.
Arnold LJ (with whom Coulson and Zacaroli LJJ agreed) dismissed the appeal on infringement, but allowed the appeal to some extent on issues of revocation. easyGroup was ordered to pay 75% of the Defendants’ costs below (to be assessed on the indemnity basis, as decided by Fancourt J – see [2024] EWHC 3210 (Ch)) and 50% of the Defendants’ costs of the appeal.
The appeal raised the following points of interest:
- In spite of the recent decision of the Supreme Court in Iconix v Dream Pairs, the Court of Appeal reversed certain decisions of the first instance tribunal on issues involving a multifactorial assessment (revocation for lack of genuine use)
- When considering whether use of a variant sign constitutes genuine use of a trade mark, the court will consider whether use of the variant is actually use of more than one sign, applying the Court of Appeal’s judgment in Specsavers v Asda
- In cases of partial revocation of specifications of services the court should consider the “intended mode of use of the services in question”. The Court of Appeal also considered the Nice Classification when arriving at a fair specification.
- The Court of Appeal appeared to introduce a new rule of precedent: where a first instance court is determining the same issue which has already been decided by a different first instance court, the later court should follow the earlier decision unless it contains an error of law or principle
Chris Aikens appeared as junior counsel for the Defendants.