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

The judge found that the second easyJet mark had only been used during the relevant period in the way he described at [141]:

“The facts are that all the goods in question are sold by easyJet to passengers who are flying on its planes, not in other outlets - though the goods wished to be purchased by passengers can be pre-ordered (by paying for them online) before they fly.  There was no evidence to establish that any of the goods that easyJet sells can be collected by someone who is not an easyJet passenger on a plane, or delivered to them on land.  In that sense, although the contract of sale and purchase does not have to be concluded on a plane or at an airport, the goods can only be delivered to an easyJet passenger in the air.”

The judge agreed with Bacon J in easyGroup Ltd v Beauty Perfectionists Ltd [2024] EWHC 1441 (Ch), [2024] FSR 28 that this amounted to a coherent sub-category of retail services for the reasons he gave at [144]:

“The provision of retail services in supplying certain goods (essentially of a gifts character) to those travelling by aircraft, which the passengers receive onboard and disembark with at their destination, is essentially different from providing a retail store, a market stall, wholesale premises or a website for purchase. It is an ancillary service of convenience to a very limited market. I would add two points to her reasoning. First, while at one level retailing other people’s manufactured goods can be seen as a single descriptive category, in whatever exact way it is performed, in reality it is such a broad category of different types of services provided to different consumers that it ought to be susceptible to different subcategories, as long as these are not arbitrary. Second, that if the matter is looked at in terms of the final sentence of  Kitchin LJ’s fourth proposition (‘ultimately it is the task of the tribunal to arrive at a fair specification of goods or services having regard to the use which has been made of the mark’), it is self-evidently fair to specify the services for which the Claimant has used the mark throughout the 5 years as being solely in connection with flights on aircraft, as there has been no other kind of retail of those goods; and no consumer would be likely to consider that offering the same goods for sale in a bricks and mortar store, or on a home delivery website, was anything to do with easyJet or easyGroup, given their wholly distinct retail operations.”

Nevertheless, the judge did not restrict the part of the specification of services of the second easyJet mark which covered “retail services connected with the sale of jewelry [sic], watches, purses, wallets, pouches and handbags” to “inflight retail services” as Bacon J had done with a different part of the specification. Instead, he restricted it to “retail services provided to airline passengers”.