Easygroup Ltd v Easy Fly Express Ltd & Anor

Permission to serve proceedings out of the jurisdiction requires three cumulative conditions: a serious issue to be tried on the merits, a good arguable case that a jurisdictional gateway applies, and England being clearly or distinctly the appropriate forum.

For trade mark infringement and passing off based on foreign website activity, use must be targeted at consumers in the United Kingdom or elsewhere in the European Union. Accessibility of a website, use of English, or similarity between marks is not sufficient. Targeting is assessed objectively from the perspective of the average consumer, having regard to all relevant circumstances.

A good arguable case on a jurisdictional gateway does not require a good arguable case on the substantive merits.

easyGroup alleged that Easy Fly Express Ltd, a Bangladeshi cargo airline, and its chairman infringed registered trade marks and committed passing off by using similar signs and get-up on its website and Facebook page.

Permission had been granted to serve the claim form and particulars of claim outside the jurisdiction. The defendants applied for an order that the court lacked jurisdiction or should decline to exercise it.

The principal issue was whether easyGroup had a real prospect of establishing that the defendants’ activities were targeted at the United Kingdom or European Union. The court also considered whether the jurisdictional gateways were satisfied and whether England was the appropriate forum.

1. Applicable service-out principles. The claimant had to establish: (i) a serious issue to be tried, meaning a substantial question of fact or law and a real, rather than fanciful, prospect of success; (ii) a good arguable case that the claim fell within a gateway in paragraph 3.1 of Practice Direction 6B; and (iii) that England was clearly or distinctly the appropriate forum and that the court should exercise its discretion to permit service out. The good arguable case standard required a plausible evidential basis, with the court taking a view where it could reliably do so.
2. Targeting. Whether foreign website activity constituted use of a trade mark in the United Kingdom or European Union depended on whether the activity was targeted at consumers there. The question was objective, viewed from the perspective of the average consumer, while the trader’s intention could be relevant. All the circumstances had to be evaluated, including the appearance and content of the website, the nature and size of the business, the services offered and relevant evidence of use.
3. The website’s accessibility from the United Kingdom, its use of English, broad statements about global reach, and similarity between the signs and easyGroup’s marks did not establish targeting. The website identified a Bangladeshi business, supplied Bangladeshi contact details, and indicated that international expansion was prospective and focused initially elsewhere. The evidence therefore did not show a real prospect of establishing targeting in the United Kingdom or European Union.
4. The court rejected the submission that a good arguable case on a gateway required a good arguable case on the substantive claim. The relevant gateway requirements were independently satisfied. England was also clearly the appropriate forum if the merits threshold had been met.
5. Because easyGroup failed to satisfy the first requirement, the defendants’ application succeeded. The court did not need to determine the joint-tortfeasance issue, although it indicated that easyGroup would have had a real prospect of success on that issue.