easyGroup Limited v easyfundraising Limited & Ors

Appellate intervention in a multi-factorial trade mark assessment requires an error of law or principle, such as a gap in logic, inconsistency or failure to consider a material factor. Under the Trade Marks Act 1994, variant use is assessed objectively through the eyes of the average consumer; subjective reasons for using a variant are irrelevant. Independent service subcategories depend principally on purpose and intended mode of use. Services may be divided by medium, including printed advertising and website or on-board-aircraft retailing. A free email service may constitute genuine use where consumers perceive it as a service traded in its own right, even if it also promotes other businesses. The appeal therefore varied the revocation decisions, but all infringement claims remained unsuccessful.

easyGroup appealed Fancourt J’s judgment and order dismissing its claims for trade mark infringement, passing off and related relief, while partly upholding counterclaims for revocation for non-use. The appeal was confined to four marks: two Easylife marks, an easyJet mark and the easy.com mark. The issues included whether signs were acceptable variants, how the specifications should be partially revoked, whether free email provision amounted to genuine use, and whether the Defendants’ signs created a likelihood of confusion. The Defendants brought a contingent cross-appeal concerning the restriction of the easyJet specification.

The central questions were how the relevant statutory tests applied to the marks and services in issue, and whether the judge’s multi-factorial assessments disclosed an appealable error.

1. Disposition. The appeal was allowed in part. Grounds 1, 3 and 4 succeeded. Ground 2 and the infringement grounds were dismissed. The contingent cross-appeal and the relevant respondents’ notice grounds were dismissed.
2. Appellate review. In a multi-factorial trade mark evaluation, the appellate court may intervene only for an error of law or principle, including a gap in logic, inconsistency or failure to take account of a material factor undermining the conclusion. Mere disagreement with the evaluative result is insufficient. The likelihood of confusion under section 10(2) of the Trade Marks Act 1994 must be assessed globally through the average consumer, taking account of the overall impressions of the marks, their distinctive and dominant components, the similarity of the goods or services and the actual context of use.
3. Variant forms. The question under section 46(2) is objective and is assessed through the eyes of the average consumer. The registered mark and the sign used must be compared by identifying their differences and asking whether those differences alter the distinctive character of the registered mark. Evidence of the proprietor’s subjective reasons for using a variant, and evidence of the commercial importance of a particular branding element, is irrelevant to that inquiry. The word element easylife supplied almost all the distinctive character of the Easylife Stylised Mark. The variants relied upon did not alter it. Use of the word element alongside another sign did not change that conclusion because the relevant mark remained perceptible as an indication of origin.
4. Partial revocation. Independent subcategories are identified principally by purpose and intended use; for services, the intended mode of use is relevant. Different publics, shops or market segments are not, by themselves, sufficient. Advertising services may be divided by medium because their intended modes of use differ. The Easylife specification was therefore properly restricted to advertising or promotional space in printed publications. Retail services may similarly be divided by medium. The easyJet specification was amended to cover retail services connected with the specified goods provided by means of an internet website or on board an aircraft. The formulations retail services provided to airline passengers and inflight retail services were insufficiently accurate in the circumstances.
5. Genuine use of easy.com. The provision of free email services was not purely promotional. The average consumer would perceive the service as trade in email services in its own right, even if the provider also intended to promote other goods and services. The absence of evidence of the precise number of active accounts was not fatal. The evidence of nearly 20 years’ use, continued use during the relevant period and substantial website usage was sufficient, bearing in mind that there is no de minimis rule.
6. Infringement. The services to be compared are those in the registered specification, not merely the services actually provided under the earlier mark. Nevertheless, the Defendants’ fundraising platform was fundamentally a means of enabling supporters indirectly to give money to good causes. Its services had only high-level similarity with online retail services. Considering the relevant consumers, marks, services and circumstances of use, there was no likelihood of confusion with the Easylife, easyJet or easy.com marks. The infringement claims therefore failed.

1. Court of Appeal (Civil Division): Allowed the appeal in part, varied the revocation findings and dismissed the infringement grounds and contingent cross-appeal: [2025] EWCA Civ 1000.
2. High Court of Justice, Intellectual Property List (ChD): Fancourt J dismissed the infringement, passing off and invalidity claims and partly upheld the counterclaims for revocation for non-use: [2024] EWHC 2323 (Ch).