EasyGroup Limited v Easyfundraising Limited & Ors

For trade mark infringement, a business facilitating purchases from independent retailers does not provide the retailers’ goods or services merely because it advertises them or links consumers to them. The question is how the average consumer understands the service, including the consumer’s overall journey through the platform.

Similarity based only on the common word “easy” will rarely establish confusion or a link under sections 10(2) or 10(3), particularly where the claimant’s distinctive get-up is absent and the defendant’s business is materially different. Reputation, unfair advantage and detriment require evidence or a sound evidential deduction; speculation is insufficient.

EasyGroup brought claims against easyfundraising, associated companies, their founder and an investor for infringement of nine registered trade marks under sections 10(2) and 10(3) of the Trade Marks Act 1994, and for passing off. The claims concerned the signs easyfundraising, easysearch, @easyuk and successive easyfundraising logos used between 2005 and 2022.

The defendants counterclaimed for revocation of several EasyGroup marks for non-use and for invalidity of two of their own marks. The central issues were the fair specifications of the marks, the nature and similarity of easyfundraising’s services, likelihood of confusion, the existence of a link, unfair advantage or detriment, and the liability of the investment firm.

1. Revocation. The easy.com mark and first easylife mark were revoked for non-use. The easyHotel mark was not partially revoked. The second easyJet mark was partially revoked because genuine use was confined to retail services provided to airline passengers. The court applied the genuine-use principles summarised in Nuclei and the subcategory analysis in Merck. Use of the easy.com email service was promotional use for other businesses, not genuine commercial exploitation of electronic mail services. The easylife variants altered the distinctive character of the registered mark.
2. Section 10(2). The signs had only low similarity with the relevant marks. The presence of “easy” did not make it a dominant element. Easyfundraising provided fundraising and advertising services, not transport, hotel, retail, internet-access or licensing services. The average consumer would understand that purchases were made from the selected retailer after leaving the platform. The claims therefore failed for lack of identical or similar services and, where relevant, lack of confusion. Even where advertising services were identical, no likelihood of confusion was established.
3. Section 10(3). The court applied the requirements stated in Muzmatch. Except in relation to the second easylife mark and online retail services, no sufficient link was established. In that case a significant proportion of consumers might bring Easylife to mind, but there was no unfair advantage, detriment to distinctive character or detriment to repute. Such harm could not be inferred from isolated complaints, alleged charity-related shortcomings or the use of “easy”.
4. Passing off and Palatine. The signs did not misrepresent easyfundraising as Easylife or any EasyGroup business, and no damage was proved. The claim against Palatine also failed. Applying Lifestyle Equities, accessory liability would require knowledge of the essential facts making the conduct wrongful and causation. Neither was pleaded and proved; in any event, Palatine’s conduct did not cause any tort.
5. All infringement, passing-off and invalidity claims were dismissed. The counterclaims were disposed of as specified above, with the easylife and easy.com revocations and the partial revocation of the second easyJet mark taking effect from dates to be agreed or determined.