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

Similarity between the Defendants’ Signs and the Easylife Stylised Mark. The Defendants accepted that the Defendants’ Signs were similar to the Easylife Stylised Mark, but there was a dispute as to the nature and extent of that similarity. The judge’s assessment was as follows:

“85.

There is clearly a visual and aural similarity between the Easylife Stylised Mark and the Defendants’ Signs in that they all feature the word ‘easy’ and they all use that word in conjunction with a similar second word (i.e. the word ‘life’ in the case of the mark and the word ‘live’ in the case of the signs). Aurally and, particularly, visually those words are the most important part of the mark/sign as a whole. A further similarity is that, in the case of the Defendants’ two logos shown above, the two words are run together without a gap just as they are in the mark.

86.

Despite this, I find that the average consumer would see the mark and the signs as having, at best, a moderate level of similarity. The word ‘easy’ is a simple descriptive word that is frequently used both by itself and also … in combination with other words to form a brand …. In the case of the Easylife Stylised Mark, that word is used in combination with another simple descriptive word ‘life’ – a combination which …is used in normal speech and which has also been used by third parties as a brand or part of a brand. The average consumer would be aware of this. Further, the average consumer looking at the Defendants’ Signs, would see that the word ‘easy’ is being combined with a different descriptive word (‘live’), to create ‘easylive’ which is conceptually very different to ‘easylife’. Conceptually, the mark ‘easylife’ stands by itself – a person can have an easy life. Nothing more needs to be said. In contrast, ‘easylive’ does not stand by itself but is adjectival in nature. It needs something more and it begs the question – an easy live what? In three of the signs, the answer is provided – the word ‘Auction’, with a capitalised first letter and, in the case of the Auction Emphasised Logo, with emboldening to give it further prominence. I do not think that the average consumer would skate over the inclusion of that word in these signs. In the other cases, the question is likely to be answered by the context in which the sign is used and which, in this case, is likely to make clear that it is a live auction - a real time auction made easy by being accessible online rather than in person.

87.

Another important difference (visually and conceptually) is that none of the Defendants’ Signs include anything even remotely resembling the triangular device containing a tick that is a feature of the Easylife Stylised Mark. As I have found when dealing with the issue of revocation (see paragraph 51 above), that device served to emphasise the concept created by the word ‘easylife’ and it would be seen by the average consumer as an important part of the mark. Its absence from the signs is, therefore, a significant difference and, as I have mentioned, highlights the different conceptual message that the signs convey.

88.

Finally, the average consumer would note other differences, albeit of lesser distinctive significance, between the Defendants' Signs and the Easylife Stylised Mark – such as the omission of the words (in small font) ‘Lifestyle Solutions’ and the inclusion of additional words such as ‘.com’ or ‘(Services) Ltd’.”

Similarity between services. The judge divided the services provided by the Defendants into three categories as follows:

It was common ground that the Defendants’ Advertising Service was identical to “advertising services” in the Easylife Stylised Mark if that was not restricted. The judge found that the Defendants’ Catalogue Service and the Defendants’ Auction Broadcast Service were identical or highly similar to the “bringing together” services. Although it was not necessary to determine the point, he also said at [101] that “my impression is that there is an identity or strong similarity” between those services and “advertising services”.

Distinctive character. The judge found that the Easylife Stylised Mark had acquired an enhanced distinctive character as a result of the very extensive use made of the variant forms of it by Easylife since 2000 and of the substantial and increasing scale of Easylife’s business over that period.

Overallassessment. The judge held that there was no likelihood of confusion. He divided his reasoning into three stages. First, he considered the significance of the similarities between the Easylife Stylised Mark and the Defendants’ Signs:

“105.

I have already dealt with how the average consumer would have viewed the Easylife Stylised Mark and the Defendants’ Signs (see paragraphs 83 to 88 above). Whilst there is a moderate similarity between them, the average consumer of both types (a member of the general public or customers looking to advertise their goods) would have been well aware that that similarity arose from the use of a word (‘easy’) that was a normal word, a word that is widely used and which is capable of being used descriptively, but that was given some level of distinctiveness in the mark by being used in combination with the word ‘life’, the words ‘lifestyle solutions’ and the triangle/tick device. It seems to me that the average consumer would not assume that a party trading, even trading in relation to identical or similar services, using another sign that featured the word ‘easy’ was the Claimant or associated in some way with the Claimant and/or its mark. The average consumer may well be aware of extensive use made of the word ‘easy’ by the Claimant and its group of associated companies but I do not think that that person would assume that the Claimant had a monopoly of such use.

106.

Here, the average consumer would see that, in the case of the Defendants’ Signs, the word ‘easy’ had been combined with the word ‘live’ which, whilst sharing 3 of the 4 letters of the word ‘life’, has created something which, as set out above, is conceptually quite different to the Easylife Stylised Mark. The average consumer would also note the omission of the triangle/tick device and the other differences to which I have referred. All of this suggests that the average consumer is not likely to be confused, despite the identical or similar nature of the parties’ respective services.”

Secondly, the judge considered the impact of the enhanced distinctive character at [108]:

“… I agree with the point made by Mr Aikens … that this does not mean that the average consumer was any more likely to be confused. I have to say that I am not certain whether it would be correct to say that the enhanced distinctive character was limited to the business actually conducted under the Easylife name (which, as Mr Aikens argued … was quite different to that being conducted by the Defendants). But even if it was not so limited, I do not accept that the enhanced distinctive character in this case would have led to any real likelihood of confusion given the descriptive (and common) nature of the word ‘easy’ and the very clear conceptual differences between the Easylife Stylised Mark and the Defendants’ Signs to which I have referred above.”

Thirdly, the judge considered documentary evidence relied on by easyGroup as being evidence of actual confusion. easyGroup relied upon 87 instances. 76 of these were of the Defendants or auction houses or their customers referring to the Defendants as “Easy Life” rather than “Easy Live”. The judge found that these instances were not evidence of actual confusion because it was clear that in each case the person knew exactly to whom they were referring, namely the Defendants. It was probable that the error was a simple typographical error due to the fact that the letter “f” is next to the letter “v” on the standard QWERTY keyboard. Four instances were of customers of Easylife wrongly referring to “Easy Live” rather than “Easy Life”. Again, the judge found that these were not evidence of actual confusion, but more probably typographical errors.

There were only seven instances which seemed to the judge to raise a possible suggestion of confusion. The judge assessed these at [119] as follows:

“a.

The Defendants’ record of a call received in July 2017 from a lady complaining about being ‘harassed by people that phone you from easylife’. However, her message expressly stated ‘I don’t know if you’re the right number’ and she apologised in advance in case she was making a mistake – which turned out to be the case (‘she wanted to contact easy life not easy live’). It is hard to see this as real confusion as opposed to mere uncertainty.

b.

An email exchange in October and November 2017. In this, a person (who had clearly been a customer of both Easylife and the Defendants) emailed Easylife regarding an entry on her debit card statement for the sum of £3. It turned out that the payment was to the Defendants and was nothing to do with Easylife. This does seem to involve some confusion although this could be due to a misreading of the statement rather than a mistake as to the trade origin of the relevant services and it is hard to attribute much weight to this incident without knowing more about how the transaction appeared on the credit card statement and why the mistake was made.

c.

A similar mistake and similar reservations apply with regard to an email exchange in September 2021 when a customer of the Defendants emailed Easylife seeking a refund of the £3 registration fee for an auction.

d.

Another example, from April 2021, involved a customer of both Easylife and the Defendants. His credit card statement showed a payment of a £3 registration fee to the Defendants in respect of an auction at the Peebles Auction House and, on the same day, a payment of £59.99. At 12.01 he emailed the Defendants querying that latter payment as he had not bid for anything at the auction. Then, at 12.07, he emailed again saying the Defendants should ignore his earlier email as the payment had been ‘to Easy Life, not Easy Live’ and had related to a purchase from Easylife made in the previous month. Clearly, without the Defendants even having to respond, the customer had easily been able to correct his own mistake presumably after looking at his credit card statement more carefully. This does not seem a promising basis on which to find a likelihood of confusion.

e.

An exchange of emails in July 2021 between the Defendants and a person asking to be unsubscribed from ‘this site’ (which site was unspecified). On the Defendants pointing out that they had no account for him, he responded confirming that that was correct but stating that ‘the email which plugged me in to you was from Pickering Auctions’ and going on to say that that he had ‘bought items from Easy Life catalogues in the past but never authorised receiving emails from any companies with which you have arrangements’. It has to be said that the position is unclear save for the fact that this person was clearly annoyed and had made some form of link between his dealings with Pickering Auctions (presumably a customer of the Defendants) and Easylife.

f.

An email exchange in August 2021 where a customer who had bought an eleccoter [sic] bicycle from Easylife wrongly emailed the Defendants about the fact that it had not been delivered. The reason for this mistake is unclear.

g.

Finally, in June 2023 where a customer of Easylife initially emailed a query regarding an order to [email protected] and, having received a failed message response, forwarded it to the correct address for Easylife. Again, no explanation was provided for the initial mistake.”

The judge’s overall assessment of this evidence was as follows:

“120.

In the context of the facts as a whole, this evidence is not sufficient to undermine the conclusion that I would have reached without such evidence – namely that there is no real likelihood of confusion. None of the seven examples is particularly convincing or strong evidence of relevant confusion.

121.

Further, it is undoubtedly the case that an absence (or relative absence) of evidence of actual confusion is not necessarily fatal to a claim under s.10(2)(b) …. However, the fact that there are only these seven examples notwithstanding the scale of Easylife’s business and notwithstanding the fact that the Easy Live Auction name has been used since January 2010 (some 14 years) suggests that the likelihood of confusion is very low, indeed insignificant.

122.

It is also possible that, with the passage of time, evidence of actual confusion might be difficult to find. However, the parties have undergone very extensive searches on the issue of confusion. … Thus, even if I had found that the seven examples referred to above were evidence of actual confusion, if there was a real likelihood of confusion, I would have expected to find more than those seven examples.”