CA-2024-00277 - [2025] EWCA Civ 1000

Appeal ground 7 is affected by appeal ground 3. The consequence of appeal ground 3 succeeding to the extent that it has is that infringement of the second easyJet mark must now be re-assessed on the basis that the relevant part of the specification is amended to read “retail services connected with the sale of jewelry, watches, purses, wallets, pouches and handbags provided by means of an internet website or on board an aircraft”. The Defendants contend that the judge nevertheless reached the correct conclusion.

easyGroup contends that the Defendants’ services are very similar, if not identical to “retail services”. This contention holds good for “retail services … provided by means of an internet website”. Nevertheless, I do not accept it for the reasons given in paragraph 113 above.

easyGroup also contends that the judge erred in taking differences in font and colour into account at [206] when comparing the EF Sign with a different easyJet trade mark, which although a word mark has been predominantly used in Cooper black font in orange and white. I do not accept this. The point the judge was making was a negative one: “Without the distinctive orange colour scheme and font, there would be little if any visual connection to easyJet”.

In oral submissions junior counsel for easyGroup advanced a submission which was not foreshadowed in easyGroup’s skeleton argument that, in making its reassessment of likelihood of confusion, this Court should take into account the alleged instances of confusion considered by the judge in his schedule. He made it plain that easyGroup did not challenge the judge’s finding that none of the instances proved actual confusion, but argued that what the evidence showed was that the common “easy” element of the Trade Marks and the Signs was capable of causing confusion. In reality, however, this is a challenge to the judge’s reasoning in respect of which easyGroup does not have permission to appeal.

Accordingly, I would dismiss the appeal on ground 7.