Background

In each case, easyGroup had issued infringement proceedings relying on trade mark registrations such as EASYLIFE, the easylife logo mark, and easy.com:

Both cases also involved counterclaims for revocation. Materially the same evidence was filed in each case, including evidence of variant use of the easylife logo mark.

The two High Court decisions were issued by different judges within a week of each other. Notably, different conclusions on variant use were reached.

In the first decision, EasyLive, variant use (and subsequently genuine use) was established and the easylife logo mark was only partially revoked. However; in EasyFundraising, the evidence was held to consist of unacceptable variants, and so the revocation against the easylife logo mark was wholly successful. In both High Court decisions, easyGroup’s infringement claims were unsuccessful.

Both decisions were appealed to the Court of Appeal.

EasyFundraising: revocation

Variant use

Use of a trade mark includes use in a form (the “variant form”) differing in elements which do not alter the distinctive character of the mark in the form in which it was registered.

In overturning the finding that easyGroup’s evidence did not contain acceptable variants of the easylife logo mark, the Court of Appeal found that:

1. The memorable part of the easylife logo mark was the compound word “easylife”. It was held that whilst “easylife” may not be particularly distinctive, it is what gave the mark almost all of its distinctive character.
2. Some of the variant marks could be perceived as composite marks, and divided up accordingly (for example, into a tickball figurative sign and “easylife lifestyle solutions”). In comparing the easylife logo mark to the latter part of the variant mark used, the distinctive character was found not to be altered. The fact that the tickball sign was used together with this part did not affect this.
3. Evidence from the trade mark proprietor as to their subjective reasons for using variants instead of the mark as registered is inadmissible to the assessment of variant use: the question is objective and to be assessed from the perspective of the average consumer.

Decisions of courts of coordinate jurisdictions

Notably, the Court of Appeal also commented on the fact that the High Court decision was incompatible with the EasyLive decision (a copy of which had been provided to the High Court following the handing down of the draft judgment).

The Court of Appeal found that whilst it is possible for two courts to reach opposite conclusions without either making any error of law or principle, the High Court was not justified in substituting its own decision for that of a court of coordinate jurisdiction just because it disagreed with it.

Partial revocation & coherent subcategories

In the event that it was wrong on its finding of variant use, the High Court had commented on the partial revocation of the easylife logo mark. In determining whether the High Court had reached the correct conclusion, the Court of Appeal provided guidance on considering coherent subcategories of goods and services.

The Court of Appeal confirmed that (as per cases such as ACTC and Ferrari), the essential criteria to be applied in determining independent subcategories are purpose and intended use. It is not sufficient that different goods may be aimed at different publics or sold in different shops or that different goods or services belong to different market segments.

It was acknowledged that the purpose and intended use criteria are easier to apply to goods than to services. Therefore, the Court of Appeal found that the correct approach is to consider the intended mode of use of the services in question.

Whilst the Court of Appeal found that the High Court had not applied this criteria, its proposed limitation of the easylife logo mark’s class 35 specification to “providing advertising and promotional space in printed publications” was found to represent a coherent subcategory. It accorded with the principle that advertising services can be differentiated by medium, and hence intended mode of use, even though their purpose is the same. easyGroup’s rights in the easylife logo mark were therefore to be revoked to this extent.

The Court of Appeal also applied these principles when considering the grounds of appeal related to the partial revocation of the easyJet mark.

Promotional use and genuine use

In considering whether promotional use of the easy.com mark was sufficient to establish genuine use for “electronic mail services” in class 38, the Court of Appeal found that when evaluating promotional use, the question is whether the average consumer would perceive the provision of the item in question to be purely for the purpose of promoting the sale of other goods or services or whether they would perceive it to amount to trade in the item in its own right even if with the ulterior purpose of promoting the sale of other goods or services. On this basis, the Court of Appeal overturned the High Court’s finding that there had been no genuine use.

EasyFundraising: infringement

easyGroup’s appeals with regards to its infringement claims failed. Further details as to the scope of the infringement claims can be found in our summary of the High Court decision “Easier said than done: lessons for brands from the latest easyGroup loss” https://www.dyoung.com/en/know....

EasyLive: revocation

On appeal, the defendant challenged the High Court’s decision not to revoke the easylife logo mark in full. In line with the above mentioned principles, the Court of Appeal upheld the High Court’s findings on variant use. In terms of partial revocation, and in line with the above, the Court of Appeal found that “providing advertising or promotional space in printed publications” was a subcategory. Therefore, easyGroup’s rights were reduced from “advertising services; promotional services” to this narrower scope.

EasyLive: infringement

The defendant, Easy Live (Services) Ltd, ran a business offering auction services and advertising auction catalogues online. easyGroup brought a claim under section 10(2)(b) of the Trade Marks Act 1994, alleging that the defendant’s use of signs such as “Easy Live,” “Easy Live (Services) Ltd,” and “Easy Live Auction” infringed its marks by creating a likelihood of confusion.

On appeal, a significant point of contention was whether “EASYLIFE” and “EASY LIVE” were conceptually different. The High Court believed so to an extent, interpreting “live” as an adjective (for example, a live auction) and “life” as a noun. The Court of Appeal disagreed, finding that “live” could equally be interpreted as a verb, meaning to live, closely aligning conceptually with “life.” As such, the High Court had erred in downplaying the semantic similarity between the two.

In reassessing the likelihood of confusion, given the similarity of the marks, the Court of Appeal allowed the appeal to the extent of substituting a finding of infringement of both the EASYLIFE mark and the easylife logo mark by use of the sign EASY LIVE.

In short

In determining variant use, the verbal and dominant elements of figurative marks appear to be key to assessments of distinctiveness. The decisions also highlight the importance of registering updated logos, so as to avoid any potential issues with regard to variant use.

In considering partial revocation, the essential criteria to be applied in determining independent subcategories are purpose and intended use.

In determining genuine use, promotional use can be sufficient.

In determining infringement, the analysis of conceptual similarity is not always clear cut. The meaning of words can shift depending on context. Courts must take account of multiple interpretations, including how average consumers might understand and misread them.

Case details at a glance

Jurisdiction: England & Wales
Decision level: High Court
Parties: easyGroup Limited v Easy Live (Services) Limited, Achilleas Pavlou Achilleous and Jonathan Richard Dean Burnside
Citation: [2025] EWCA Civ 946
Date: 24 July 2025
Decision: dycip.com/2025-EWHC-Civ-946

Jurisdiction: England & Wales
Decision level: High Court
Parties: easyGroup Limited v Easyfundraising Limited, The Support Group (UK) Limited and Ian Woodroffe
Citation: [2025] EWCA Civ 1000
Date: 24 July 2025
Decision: dycip.com/2025-EWCA-Civ-1000