Easygroup Ltd v Easylife Ltd (Formerly Easylife Group Ltd)
| Jurisdiction | England & Wales |
| Judge | Mr Hugh Sims |
| Judgment Date | 11 June 2021 |
| Neutral Citation | [2021] EWHC 1705 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: IL-2017-000028 |
| Date | 11 June 2021 |
[2021] EWHC 1705 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
Royal Courts of Justice
7 The Rolls Building
Fetter Lane
London EC4A 1NL
Mr. Hugh Sims QC
(Sitting as a Deputy Judge of the High Court)
Case No: IL-2017-000028
Mr. Jamie Muir Wood (instructed by Stephenson Harwood LLP) appeared for the Claimant.
Mr. Chris Aikens (instructed by Andrew Clay Legal Limited) appeared for the Defendants.
APPROVED JUDGMENT
Mr Hugh Sims QC:
This is a pretrial review involving a claim brought by EasyGroup Limited (“easyGroup”) against Easylife Limited, formerly Easylife Group Limited, and Mr. Gregory Grant Caplan. Mr. Muir Wood represents the claimant. Mr. Aikens represents the defendants.
There are a number of applications I am required to resolve at the pretrial review. This is the first application I am required to determine. Before I go into the detail of the application I will say a little bit about the background of the case.
The claim, as I have indicated, has been brought by the easyGroup company and it trades under the sign “easyGroup” and owns a family of “easy” brands, the majority of which comprise the word “easy” followed by a word that alludes to specific goods or services or a characteristic of those goods or services. Various examples have been given, including of course the well-known easyJet brand. Others include easyValue, easyLand, easyHotel, easyCar and easyFood.
The “easy” brands cover a diverse range of goods and services and are promoted via a website, www.easy.com, and further details of the history of those brands are set out on that website and a linked website.
The claimant operates or licenses others to operate businesses under the “easy” brands.
The first defendant's primary business is in the retail of household goods through a catalogue which has more recently grown or developed into online services, as well, under the signs “Easylife Group” and “Easylife”. In these proceedings the claimant alleges trade mark infringement and passing off in respect of the use of the signs “Easylife Group”, and/or www.easylifegroup.com by the defendants in relation to their core services, which are the retail sale of a variety of clothing, homewares, household goods, gadgets, motoring accessories, health and mobility items for the elderly and/or infirm and other miscellaneous goods and offering them for sale via mail order catalogue and/or online, and trade mark infringement and passing off in respect of use of the additional signs “easyclean”, “easycare” and/or “easy green”. The additional product signs are used for cleaning preparations and, in the case of “easy green” for lawn treatment product.
Infringement, so far as trade mark infringement is concerned under the Trade Marks Act 1994, is alleged both under section 10(2), relating to likelihood confusion, and section 10(3), relating to unfair advantage and/or detriment to distinctive character or repute of the claimant's marks. The defendants deny the allegations, and there is also a counterclaim that three of the trade marks relied on by the claimant were invalidly registered and/or each of the trade marks relied on by the claimant should be revoked for some or all of the goods and services relied on in these proceedings.
There has been some earlier interlocutory skirmishing between the parties in relation to amendments to the pleadings, some of which proposed amendments by the claimant were unsuccessful, and have been hived off into a new claim. The new claim has been issued, but stayed, pending the resolution of this claim.
So far as the application is concerned, it is dated 28th May 2021, and it is brought by the claimant seeking to strike out, and exclude from the evidence, six witness statements. The defendants wish to adduce that evidence, and call five of those witnesses to give oral evidence, after a series of, the claimant says, leading questions had been put to them by the defendants or their lawyers. The witness statements are to the effect that the witnesses say they were not confused between the claimant and the defendants when they used the term “easyGroup” or “easy group” in contemporaneous communications with or about the first defendant. Some of those communications occurred in the context of the complaints made by those individuals to the first defendant.
Mr. Jacob, Partner in Stephenson Harwood, for the claimant, set out in detail the evidence in support of the application, and in particular how this evidence was apparently procured. The principal and first complaint made by the claimant in this respect is that this is either survey evidence and/or it is a witness gathering exercise which has been conducted in contravention of the “Whitford guidelines” and/or the further guidance set out by the Court of Appeal in Marks & Spencer plc v Interflora Inc [2012] EWCA Civ 1501, [2013] ETMR 11.
I have been taken to that decision, and the leading judgment in it given by Lewison LJ. It, of course, concerned a different sector, namely delivery of flowers. The claim was brought by Interflora, who were the proprietor of certain trade marks against Marks and Spencer, a chain of retail stores, which also sold and delivered flowers.
In particular in that case, Interflora conducted two surveys of internet users and then sought permission to adduce witness statements from some of the survey respondents. The reason they did so is because the issue in that case concerned the use of Google “AdWords”, and the use of those in order to try to encourage people who had typed in the word “Interflora” into the Google search engine to shop with Marks and Spencer, by being provided with a pop-up advert for Marks and Spencer services, as part of the search return provided by Google. As a result, a question arose as to whether or not that constituted a trade mark infringement. Interflora conducted two surveys of internet users and sought permission to adduce witness statements from some of the survey respondents. The judge found that the evidence drawn from one of the surveys was admissible and admitted it. Marks and Spencer appealed and argued that irrespective of whether the evidence was admissible, it should not have been admitted on the basis that it was not probative of the issue before the court in the trade mark infringement action.
The Court of Appeal allowed the appeal. What is important to note for present purposes is that the Court of Appeal emphasised, in relation to survey evidence, the importance of complying with the Whitford guidelines, and in relation to witness gathering exercises, the importance of following suitable additional guidance. The Court noted that the issue was not whether or not this evidence was potentially admissible but the extent to which it produced any evidence of real value for the court, which was required to determine the question of confusion for the purposes of the trade mark infringement proceedings before it.
Ultimately, the court concluded that the manner in which that evidence had been adduced was such that it should not be allowed into evidence.
So far as the relevant principles are concerned in relation to the Whitford guidelines, I have been taken to paragraph 61 of the judgment of Lewison LJ in Interflora, where reference is made to the guidelines laid down by Whitford J Imperial Group plc v Philip Morris Ltd [1984] RPC 293. At paragraph 61 of the judgment it is stated as follows:
“ Imperial Group plc v Philip Morris Ltd [1984] RPC 293 dealt a body blow to the reception of survey evidence. Whitford J was trenchant in his criticisms of the survey evidence adduced in that case, and laid down guidelines for the conduct of future surveys. These (‘the Whitford guidelines’) can be summarised as follows:
i) if a survey is to have any validity at all, the way in which the interviewees are selected must be established as being done by a method such that a relevant cross-section of the public is interviewed;
ii) any survey must be of a size which is sufficient to produce some relevant result viewed on a statistical basis;
iii) the party relying on the survey must give the fullest possible disclosure of exactly how many surveys they have carried out, exactly how those surveys were conducted and the totality of the number of persons involved, because otherwise it is impossible to draw any reliable inference from answers given by a few respondents;
iv) the questions asked must not be leading; and must not direct the person answering the question into a field of speculation upon which that person would never have embarked had the question not been put;
v) exact answers and not some sort of abbreviation or digest of the exact answer must be recorded;
vi) the totality of all answers given to all surveys should be disclosed; and
vii) the instructions given to interviewers must also be disclosed.”
The judgment also deals with the question of “witness gathering” or “collection programmes” off the back of surveys. In particular in paragraph 63 there is reference to the witness collection programme concept as follows:
“The witnesses are selected by the person seeking to call them. The selection is never intended to be a representative sample of all interviewees; it is a selection of those witnesses most likely to be most favourable to that party's case. In practice the survey is carried out by the claimant seeking to establish passing off or trade mark...
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