easyGroup v Nuclei [2022]

easyGroup v Nuclei [2022]

easyGroup Ltd v Nuclei Ltd and others [2022] EWHC 901 (Ch) involved an appeal by easyGroup Ltd against the decision of Mrs Justice Bacon, who had dismissed easyJet's claim for trademark infringement and revoked the marks on which it relied. The specific marks in question were UK trade mark No. 2313529A and EU trade marks Nos. 2907509 and 11624376. The appeal was heard before Lords Justices Arnold and Nugee and Sir Christopher Floyd on October 10 and 11, 2023, with the court later announcing the dismissal of the appeal and providing detailed reasons on October 27, 2023.

The legal dispute centred around the use of the sign EASYOFFICES, alleged to infringe upon easyGroup's registered trademarks. Mrs Justice Bacon had held that the claim for trademark infringement failed concerning certain marks due to differences in the design of the marks and a lack of evidence of confusion. She also addressed the issue of genuine use, finding that easyGroup had not demonstrated real commercial exploitation of its marks between May 2014 and May 2019.

The grounds of appeal included arguments related to the identity or close similarity of services, signs, and marks, as well as contentions that the judge failed to consider aural similarity and evidence of actual confusion. The appeal court, led by Lord Justice Arnold, meticulously examined each ground of appeal.

Regarding the claim under S10(1) of the Trade Marks Act and Article 9(2)(a) of the EU Trade Mark Regulation, Lord Justice Arnold emphasised the need for identity in both signs and services for infringement. He concluded that, despite the visual and aural similarity between EASYOFFICE and EASYOFFICES, the additional letter, extra syllable, and conceptual differences prevented a finding of identity.

The court also considered the claim under S10(2) and Article 9(2)(b), highlighting the conditions for establishing infringement, including the global assessment of likelihood of confusion. Lord Justice Arnold underscored that the absence of evidence of actual confusion is not necessarily fatal to such a claim, but the duration of parallel use without evidence of confusion is significant.

The judgment delved into the principles of genuine use, outlining that it must be more than token and consistent with the essential function of a trademark. The burden of proving genuine use lies with the trademark proprietor, requiring clear, precise, and detailed evidence.

In conclusion, the court concurred with Mrs Justice Bacon's findings, and the appeal was dismissed. Lords Justices Nugee and Sir Christopher Floyd agreed with Lord Justice Arnold's comprehensive analysis and conclusions.
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