CA-2024-002240 - [2025] EWCA Civ 946

easyGroup contends that the judge erred in law or principle in concluding at [86] that “easylife” and “easylive” are “conceptually very different” and that that finding is in any event rationally insupportable (I will call this “Ground 1A”). easyGroup also contends that the judge erred in law or principle when giving effect to this finding when assessing likelihood of confusion (“Ground 1B”).

In support of Ground 1A, easyGroup argues that the judge made errors of law and of principle. The error of law is that the judge wrongly took the services in relation to which the Defendants’ Signs had been used into account in ascertaining the meaning of “easylife”, whereas conceptual similarity should be considered without reference to the goods or services: Case C-328/18 P European Union Intellectual Property Office v Equivalenza Manufactory SL [EU:C:2020:156] at [70]-[73]. The error of principle is that the judge failed to explain what the two concepts were and how they differed: TVIS Ltd v Howserv Services Ltd [2024] EWCA Civ 1103, [2025] ETMR 2 at [39]. easyGroup contends that, if the judge had not made these errors, he could not have made a finding of conceptual difference since the word “easy” is the same in both the marks and the signs, and the words “life” and “live” have related meanings. Rather, he should have found conceptual similarity.

In considering these arguments, it is important to differentiate between the Defendants’ Signs. For this purpose, I consider that they fall into three groups: those listed in paragraph 13 above, subparagraphs (iii) and (iv); those listed in paragraph 13, subparagraph (i); and the sign listed in paragraph 13, subparagraph (ii).

The first group consists of the words EASY LIVE AUCTION in various different forms. In this context I consider that the judge was correct to say that the word “live” would be perceived by consumers as an adjective describing, together with the word “easy”, “auctions”. Thus the word “live” would be understood to be used in the sense “in real time”, and to be pronounced with a long “i”. The judge did not make the error of law he is argued to have made, because he correctly based his conceptual analysis of these Signs purely upon their semantic content. As for the error of principle he is alleged to have made, he did explain what the two concepts were and how they differed: “easylife” means an easy life (i.e. a life which is comfortable and free from conflict, hardship or stress), whereas “easy live” in this context means easy and in real time. I am not sure that I would go so far as to describe that as “conceptually very different [emphasis added]”, but that was an evaluative assessment which was open to the judge.

The second group consists of the words EASY LIVE in various forms. In this case I consider that the judge did err in law as easyGroup contends, but the error is at least partly due to a logically anterior flaw in the judge’s reasoning. In the case of the sign EASY LIVE there is nothing to indicate to consumers that the word “live” functions as an adjective and that it is to be pronounced with a long “i”. It is at least equally likely to be understood to function as a verb and to be pronounced with a short “i”. That would be ungrammatical, but plenty of trade marks are ungrammatical. If “live” is understood to function as a verb, then consumers would not (subconsciously) ask themselves the question posed by the judge (“an easy live what?”).

Furthermore, similarity cannot depend on the goods or services in relation to which the sign has been used, as the Court of Justice held in Equivalenza at [72], because otherwise the same mark and sign could be both similar and different depending on the goods and services. (It is perhaps worth explaining that in TVIS v Howserv the fact that the sign PETSURE had in fact been used in relation to pet insurance was purely confirmatory of the concept conveyed by the sign.) As discussed in Iconix v Dream Pairs at [47]-[66], when considering infringement, the context in which the sign is used must be taken into account, and this may affect the average consumer’s perception of the signs; but that is a different point.

The third group is the sign EASY LIVE (SERVICES) LTD. In my view the fact that the word SERVICES has a broad meaning and is in brackets means that the word “live” could perhaps be read as a verb, but it is rather more likely to be read as an adjective. If it is read as an adjective, then it will again be understood as meaning “in real time”. Accordingly, the position in relation to this sign is essentially the same as with respect to the first group.

I would therefore allow the appeal on Ground 1A in relation to the second group of signs, but not the first and third groups. The consequence is that it is necessary for this Court to re-assess likelihood of confusion in relation to the second group.

Turning to Ground 1B, easyGroup argues that the judge made the same error as the error discussed in TVIS v Howserv at [40]-[41] of requiring conceptual similarity in addition to visual and aural similarity in order to find a likelihood of confusion. As easyGroup points out, and the Defendants accept, the judge did not find that this was a case of “conceptual counteraction”.

It is only necessary to consider this argument with respect to the first and third groups of signs discussed in the context of Ground 1A.

TVIS v Howserv was a case where the trade mark (VETSURE) and the sign (PETSURE) were visually and aurally very similar and were being used in relation to identical services. The judge nevertheless reasoned that the supposed conceptual difference between them was sufficient on its own to prevent a likelihood of confusion. That was an error because, as the defendant accepted on appeal, it was not a case where the principle of conceptual counteraction applied.

Whatever might be said about the judge’s reasoning in the present case so far as the second group of signs is concerned, I am not persuaded that his reasoning in relation to the first and third groups of signs is infected by this error. Rather, his reasoning was that there was no likelihood of confusion due to the conceptual difference together with the visual and aural differences, a view he considered to be confirmed by the absence of substantial evidence of actual confusion despite a reasonably long period of parallel trading. The judge undoubtedly emphasised the conceptual difference, but he also relied on the visual and aural differences, in particular at [87] and [88].