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

It follows from my conclusions with respect to appeal ground 1 (conceptual similarity with regard to EASY LIVE) and appeal ground 3 fourth argument (error as to the assessment of likelihood of confusion with respect to the Easylife Word Mark) that it is necessary for this Court to re-assess likelihood of confusion to that extent (but only to that extent).

It is convenient to do so by first considering the Easylife Word Mark and the EASY LIVE sign. Both errors are relevant here. The judge found that this Mark had some inherent distinctive character and an enhanced distinctive character. There is considerable visual and aural similarity between “easylife” and EASY LIVE. (Although “easylife” is a compound word whereas EASY LIVE is two words, the average consumer would be likely either not to notice or to misremember this.) For the reasons given above, there is little conceptual difference, but rather some conceptual similarity. The judge found that the Defendants’ services are identical or highly similar to the services for which the Easylife Word Mark is registered. The 80 instances of typographical errors found by the judge confirm, if confirmation were needed, that “easylife” and EASY LIVE are confusingly similar. This may explain the seven examples of potential confusion found by the judge, although it is difficult to be sure about that. That leaves the small scale of the evidence of confusion. While I agree with the judge’s assessment of this with respect to EASY LIVE AUCTION and EASY LIVE (SERVICES) LTD, I do not consider that this is sufficient to negate the conclusion that there is a likelihood of confusion in the case of EASY LIVE. This is both because confusion is inherently more probable in the case of EASY LIVE and because the Defendants’ use of EASY LIVE was infrequent, whereas they used the other signs extensively. Thus confusion is less likely to have occurred and been detected in the former case.

The Defendants contend that, even if the judge was wrong (as I have held in paragraph 97 above) to take the services in relation to which the sign was used into account when assessing the similarity between the Easylife Marks and EASY LIVE, this was not a material error because of the requirement to take the context of use into account when considering infringement. The Defendants argue that, in the context of use (as opposed to the acontextual position considered in paragraph 96 above), LIVE would be understood by consumers to be adjectival and that this negates a likelihood of confusion even if it otherwise would otherwise exist. As I observed in Lifestyle Equities CV v Royal County of Berkshire Polo Club Ltd [2024] EWCA Civ 814, [2024] FSR 32 at [54], it is not clear how far the principle that the context of use must be taken into account when assessing infringement extends. Be that as it may, in the present case it does not assist the Defendants for two reasons. First, this is just an attempt to redeploy the argument that the services affect the similarity between the Easylife Marks and EASY LIVE. Secondly, it has not been shown that the context of use of EASY LIVE has always been such that consumers would all perceive LIVE as being adjectival. If a significant number of consumers would perceive LIVE as being a verb, then that suffices for there to be a likelihood of confusion.

As for the Easylife Word Mark and the remainder of the Defendants’ Signs, only the second error is relevant. Overall, I agree with the judge’s conclusion.

Turning to the Easylife Stylised Mark, only the first error is relevant. easyGroup’s case appears less strong than with respect to the Easylife Word Mark for the reasons recognised by the judge, namely the differences between the Easylife Stylised Mark and EASY LIVE due to the absence from the latter of (i) the stylisation of the words, (ii) the tick and (iii) the strapline. Nevertheless, none of these differences is significant in my judgment. The stylisation is fairly minimal. As I have commented in paragraph 77 above, the tick could easily be forgotten by the average consumer; and it would not feature in oral use anyway. As the judge recognised when considering the issue of variant forms, the strapline is of little distinctiveness. On the other hand, account now has to be taken of the restriction of the advertising services in the specification of the Easylife Stylised Mark, and the consequential assessments I have made as to the extent of the similarities between the respective services; but this does not affect the “bringing together” services. The position concerning the evidence of actual confusion is the same as with respect to the Easylife Word Mark. Overall, I conclude that there is a likelihood of confusion between EASY LIVE and the Easylife Stylised Mark at least with respect to the “bringing together” services.