Easygroup Ltd v Easylife Ltd (Formerly Easylife Group Ltd)
| Jurisdiction | England & Wales |
| Judge | Briggs |
| Judgment Date | 29 July 2021 |
| Neutral Citation | [2021] EWHC 2150 (Ch) |
| Docket Number | Case No: IL-2017-000028 |
| Court | Chancery Division |
[2021] EWHC 2150 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
Rolls Building
Fetter Lane
London
EC4A 1NL
CHIEF INSOLVENCY AND COMPANIES COURT JUDGE Briggs
(Sitting as a High Court Judge of the Chancery Division)
Case No: IL-2017-000028
Tom Moody-Stuart QC and Jamie Muir Wood (instructed by STEPHENSON HARWOOD LLP) for the Claimant
Chris Aikens (instructed by ANDREW CLAY LEGAL LIMITED) for the Defendants
Hearing dates: 7, 8, 9 and 13 July 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
CHIEF INSOLVENCY AND COMPANIES COURT JUDGE Briggs
| Introduction | 1–3 |
| Background-general | 4–8 |
| easyJet-easyGroup | 9–57 |
| easylife | 58–90 |
| Infringement of registered trade marks | 91–96 |
| easylife challenges | 97–101 |
| Statutory provisions | 102–106 |
| Witnesses of fact | 108–172 |
| Consumer witness evidence | 175–185 |
| Consumer witness evidence—weight | 186–195 |
| Principles of law/relevant date | 196–201 |
| Revocation | 202–234 |
| Infringement – section 10(2) | 235–270 |
| Infringement – section 10(3) | 271–279 |
| Passing-off | 280–293 |
| Conclusion | 294–296 |
Chief ICC Judge
The first Defendant (“easylife” or the “Defendant”) uses the signs 'easylife group, ‘easylifegroup.com’, ‘easyclean’, ‘easy green’ and ‘easycare’ within the UK in the course of trade. It is said that they are used for similar goods or services as easyGroup's registered marks which gives rise to a likelihood of confusion on the part of the public. Other than infringement, the Claimant claims passing off. The Defendants deny infringement and passing off on various grounds, and counterclaim for revocation of in respect of some trade marks, a declaration that three of the registered marks relied upon were invalidly registered by way of a squeeze, or a reduction in their specification.
The case has a long history with four amendments made to the particulars of claim and a direction that new claims be heard at a separate trial. A considerable volume of material has been provided to the court electronically (in excess of 59,000 documents) with an index running to 198 pages. The court was taken to a fraction of the documents. Updated bundles emerged almost daily during trial. The documentation is said to support matters such as confusion, the genuine use of the trade marks under attack, reputation, usage, goodwill, family of marks, and honest concurrent use.
The parties have agreed a list of 33 issues to be decided by the court.
Background
The background of easyGroup provides context and is relied upon to demonstrate the matters mentioned in the introduction. Sir Stelios Haji-loannou, described as the “founder and director” of easyGroup, has provided a witness statement providing background to the easyGroup enterprise and trade mark acquisitions. He did not attend court. There are no significant challenges to his evidence which was admitted by way of a Civil Evidence Act notice.
Tony Anderson had worked for various easyGroup companies in the period to 2000. He now acts as a consultant. In that capacity he was engaged to chronicle the first 10 years of the enterprise. He gave evidence at trial. Much of the background material provided by Mr Anderson was not challenged.
In a recent case, W3 Limited v easyGroup [2018] EWHC 7, W3 Limited had tried to sell its business and faced difficulties due to complaints made by easyGroup as to the trading name EASYROOMMATE. W3 brought proceedings claiming that easyGroup had made groundless threats. easyGroup counterclaimed. The claim and counterclaim came on for trial before Arnold J (as he then was). In his judgment Arnold J provided a full picture of the background to easyJet and other companies using the “easy+” trade mark. I understand from counsel who acted in W3 that the Judge drew heavily from the statement of Sir Stelios for this purpose.
For further background I have been referred to the easyGroup website for “the full 27 year history of the ‘easy’ family of brands”.
I draw upon these sources to the extent that the facts are not seriously challenged, to provide the background to easyGroup, its businesses and trade marks.
easyJet
In 1995 Sir Stelios founded the budget airline easyJet. easyJet Airline Company Ltd was incorporated on 17 March 1995. The first easyJet flight was from Luton to Glasgow on 10 November 1995. From the outset, easyJet used a distinctive get-up consisting of the brand name in Cooper Black font printed in white on an orange (Pantone reference 021C) background. The unchallenged evidence of Mr Anderson is that he sat next to Sir Stelios and designer Barry Debenham of White Knight Design during a number of working sessions as the brand identity took shape. The result of the collaboration is the sign
Whenever “easyJet” was written, the lower case “e” and a capital “J” was used. The aircraft had the name painted in orange on a white background. Prominent use of orange was made throughout easyJet's marketing and promotional materials; even the exterior of the company's offices was painted orange.
Also from the outset, Sir Stelios planned to create a family of “easy+” prefixed brands, with a view to emulating Sir Richard Branson's success in extending the Virgin brand from one industry to another. easyJet's address was easyLand, easyWay, Luton Airport; the in-flight magazine was initially called easyCome easyGo (easyRider from 1998); the in-flight food and drinks service was called easyKiosk; and maintenance and repair of the aircraft was carried out by a sub-contractor called easyTech (pursuant to a formal licence agreement from February 1999). In addition, easyJet adopted the designation EZY as part of its flight numbers.
easyKiosk sold food and drink as well as goods from the first easyJet flight. The snacks were licensed to a company called Alpha In-Flight in 1995 which also used the easyKiosk brand name. There was a good deal of overlap in services. easyJet carried the passengers, the inflight magazine was for the use of the passengers and provided a useful advertising tool. For example it advertised a menu of available food and drink for passengers. Mr Anderson says that an easyKiosk domain name still exists.
The airline was an immediate success. It quickly grew in size and the number of routes increased rapidly. Flights were limited to the UK at first, but soon expanded to the Netherlands (first flight to Amsterdam on 24 April 1996), Spain (first flight to Barcelona on 12 June 1996), Italy (first flight to Rome on 25 November 1998), Germany (first flight to Munich on 25 November 1998), Portugal (first flight to Faro on 28 March 1999), Ireland (first flights to Shannon, Cork and Knock on 28 January 2005), Belgium (first flight to Brussels on 29 June 2007) and Austria (first flight to Vienna on 29 October 2007) as well as other countries (such as France, first flight to Nice on 1 November 1997). As at 30 September 2000, easyJet operated 28 routes with 18 aircraft.
The number of passenger flights represented in the following table is not disputed:
| Year/Period | Number of passenger journeys |
| 1995 | 30,000 |
| 1996 | 420,000 |
| 1997 | 1,140,000 |
| 1998 | 1,880,000 |
| 1999 | 3,670,000 |
| 2000 | 5,996,000 |
| 2001 | 7,664,000 |
| 2002 | 11,400,000 |
| 1/ 2/2003 to 31/1/2004 | 21,259,358 |
| 1/ 2/2004 to 31/1/2005 | 26,116,482 |
| 1/ 2/2005 to 31/1/2006 | 30,534,888 |
| 1/ 2/2006 to 31/1/2007 | 33,932,607 |
| 1/ 2/2007 to 31/1/2008 | 38,422,844 |
| 1/ 2/2008 to 31/1/2009 | 44,661,510 |
| 1/ 2/2009 to 31/1/2010 | 46,380,471 |
| 1/ 2/2010 to 31/1/2011 | 50,320,074 |
| 1/ 2/2011 to 31/1/2012 | 55,456,681 |
| 1/ 2/2012 to 31/1/2013 | 59,354,758 |
| 1/ 2/2013 to 31/1/2014 | 61,475,841 |
| 1/ 2/2014 to 31/1/2015 | 65,349,451 |
| 1/ 2/2015 to 31/1/2016 | 70,082,951 |
| 1/ 2/2016 to 31/1/2017 | 74,921,296 |
It is not necessary to provide all the turnover figures but the following is not disputed:
| Year | Revenue in GBP |
| 2004/2005 | 1,341,400,000 |
| 2005/2006 | 1.619.700.000 |
| 2006/2007 | 1,797,200,000 |
| 2007/2008 | 2,362,800,000 |
| 2008/2009 | 2,666,800,000 |
There is little doubt that the turnover figures demonstrate exploitation of the easyJet trade mark and goodwill that pre-dated 2005. The success of easyJet was assisted by the fact that it was featured in a popular TV documentary series called Airline, which was broadcast by ITV from January 1999. This is documented in Mr Anderson's work ‘easyHistory’.
A second series was broadcast in Summer 1999, a third series in June 2000 and a fourth series in March 2001. The second and fourth series reached about 9 million viewers per episode and the third about 7.5 million viewers per episode. Fifth to ninth series followed between April 2002 and September 2006. The programme was also broadcast in many other countries worldwide. This was in addition to the advertising carried out by easyJet. easyJet's approximate expenditure on press advertisements was £4.4 million in 1999 and £4.9 million in 2000. In addition to advertising and the TV series, easyJet has received significant editorial coverage in the press.
easyJet's business has always relied heavily on the internet. It was and remains a ticketless airline, and the vast majority of flights have...
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