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

easyGroup argues that the judge made a number of errors of principle when assessing likelihood of confusion. I shall consider these in a slightly different order to the order in which they were argued.

First, easyGroup contends that the judge failed to consider the possibility of imperfect recollection of the Easylife Marks contrary to principle (b) of the standard summary. It is true that the judge did not expressly discuss this possibility when assessing likelihood of confusion, but he did set out and purport to apply the correct principles. Imperfect recollection is an elementary and fundamental concept in this area of the law, and I see no reason to think that the judge did not have it well in mind.

Secondly, easyGroup contends that the judge failed to apply the interdependency principle, principle (g) in the standard summary. It is again true that the judge did not expressly mention this when assessing likelihood of confusion, but he did take into account the identicality or high similarity of the respective services.

Thirdly, easyGroup contends that there is a gap in the judge’s reasoning between his finding at [121] that “the likelihood of confusion is very low” and his conclusion that there was no likelihood of confusion. This is a semantic point of no merit. Clearly what the judge meant is that there was no material likelihood of confusion. It is often the case that it is not possibly entirely to exclude the risk of confusion. The court’s task is to assess whether the risk is sufficiently material to warrant a finding of infringement.

Fourthly, easyGroup contends that there is an inconsistency between the judge’s findings as to the significance of the similarities between the Easylife Word Mark and the Defendants’ Signs at [137] and his findings with respect to the Easylife Stylised Mark, in particular at [85]. When considering the Easylife Stylised Mark, the judge recognised there was visual and aural similarity with the Defendants’ Signs in that both featured “easy” in conjunction with “life” or “live”, which were the most important elements, and that in some of the Defendants’ Signs there was no gap between those two words. When considering the Easylife Word Mark, the judge said that, while it was somewhat closer to the Defendants’ Signs due to the absence of stylisation, the average consumer “would still see the similarity as arising from the use of the word ‘easy’”, indeed in the absence of stylisation that similarity would be even less likely to lead to an association with the Easylife Word Mark.

Counsel for the Defendants disputed that this was an inconsistency. I disagree. On the face of it, the reasoning in [137] is inconsistent with the reasoning in [85]. The real question is whether this can be excused as a mere infelicity in drafting. With respect to the judge, I do not think that it can be. Even if the first sentence of [137] could be explained in that way, the reasoning in the second sentence completely ignores the “life”/“live” similarity. I therefore conclude that, in this respect, the judge did err in principle with respect to the Easylife Word Mark. He was right at [85], and wrong at [137].

Fifthly, easyGroup contends that the judge erred in principle in his assessment of the evidence of confusion it relied on. easyGroup does not challenge the judge’s primary findings of fact. (During the course of argument counsel for easyGroup at times strayed into criticising the judge’s findings, but that is not a ground of appeal.) easyGroup nevertheless contends that the judge made two errors.

The first concerns the judge’s treatment of the 80 instances where people wrote “Easy Life” rather than “Easy Live” or vice-versa. easyGroup accepts the judge’s finding that these instances were probably due to typographical errors and do not demonstrate actual confusion, because the people in question knew who they were referring to. easyGroup argues that this is not the end of the analysis, because what this evidence demonstrates is the ease with which such an error can be made without the persons in question noticing it. It thus confirms, if confirmation is needed, that “Easy Life” and “Easy Live” are confusingly similar. As has often been pointed out in this context, the human eye sees what it expects to see and the human ear hears what it expects to hear. It seems to me that there is force in this point, although its impact on the overall assessment is another matter.

The second point concerns the judge’s treatment of the seven examples he discussed in [119]. easyGroup argues that the judge found that these were instances of actual confusion, and that it necessarily follows that he was wrong to conclude that there was no likelihood of confusion. I do not accept this argument. The judge does appear to have accepted that confusion was a possible reason for at least some of the mistakes, and he did not posit alternative explanations for them (unlike the typographical errors), but his overall finding in [120] was that “[n]one of the seven examples is particularly convincing or strong evidence of relevant confusion”. In the absence of any challenge to that finding, and subject to my conclusions with respect to the other grounds of appeal, the judge was entitled to conclude in [122] that “if there was a real likelihood of confusion, I would have expected to find more than those seven examples” given the duration of parallel trading and the significant efforts made by the parties to find evidence of confusion.