easyGroup Limited v Jaybank Leisure Limited

This action is one of a succession of proceedings brought by the claimant (‘easyGroup’) to enforce rights in one or more of its trade names, each of which consists of the word ‘easy’ followed by a word suggesting a field of commerce. The earliest and best known is easyJet. The airline business trading under that name was founded by Sir Stelios Haji-Ioannou in 1995.

easyGroup was incorporated in 2000 to be the owner and licensor of all intellectual property rights relating to the various ‘easy’ businesses set up by Sir Stelios. Since 2015 easyGroup has brought 52 ‘easy’ trade mark and passing off proceedings. Some have been successful, some not.

The defendant (‘Jaybank’) is a company which for about two years has provided an online vehicle rental and sales business conducted under the trading name EASIHIRE.

easyGroup owns UK registered trade mark no. UK00002349891. It is a series mark on the UK register since 30 November 2007 in this form:

The mark is registered for goods and services in four classes. easyGroup relied only on class 39 in respect of the following services:

The first mark in the series, shown above as the upper mark, includes this description/limitation: ‘The applicant claims the colours orange and white as an element of the first mark in the series.’ This mark was referred to in argument as ‘the orange mark’. There is no stated limitation for the other mark, referred to at the trial as ‘the black and white mark’. The orange mark was not directly in issue but was relied on by Jaybank to infer a limitation in the scope of the black and white mark, an argument I will return to. Hereafter ‘the Trade Mark’ should be taken to mean just the black and white mark.

easyGroup alleges that Jaybank has infringed the Trade Mark pursuant to s.10(2) of the Trade Marks Act 1994 (‘the 1994 Act’) by conducting rental and sales services for vehicles under the sign EASIHIRE. Jaybank denies infringement and relies on a defence of non-use of the Trade Mark on the part of easyGroup, pursuant to s.11A of the 1994 Act. There is no counterclaim.

Stephanie Wickenden appeared for easyGroup, Heather Lawrence for Jaybank.

The witnesses for easyGroup were Anthony Anderson and Simon O’Flynn. Mr Anderson is a former marketing director of easyGroup, later easyGroup and then easyCafe. He is now a self-employed consultant. Mr Anderson gave evidence about the history and operation of easyGroup and other companies within the group. He has given evidence for easyGroup before. I was taken to a judgment in which he was criticised, with his objectivity and reliability being put in doubt. In at least one other judgment this criticism was referred to and apparently endorsed. Undeterred, easyGroup was content to rely on Mr Anderson again in this litigation. I bear in mind what has been said, but based solely on Mr Anderson’s written and oral evidence in this case I take the view that while he occasionally veered into giving opinion evidence for which there was no permission, otherwise was doing his best to assist the court and at trial he sought to give honest answers to the questions put to him.

Mr O’Flynn is the Chief Marketing Officer of easyCar Online Ltd and gave evidence about the operation of the easyCar and easyHire businesses. There was rightly no criticism of the way in which Mr O’Flynn gave his evidence.

Jaybank’s witnesses were Nicholas Hanley and Mark Richardson. Mr Richardson is a consultant solicitor with the firm instructed by Jaybank. He gave very brief evidence about the repeat of a Google search done on behalf of easyGroup conducted by Mr Anderson.

Mr Hanley is the Managing Director of Jaybank. He discussed the operation of Jaybank and in particular its Easihire and Easirent businesses. Mr Hanley was a good witness who gave clear answers to all the questions put to him.

This action is chronologically the third of four brought by easyGroup and its corporate predecessor against Mr Hanley and/or his companies. The first was concluded by an agreement dated 6 November 2003 (‘the 2003 Settlement Agreement’). Jaybank had not at that time yet been incorporated. The 2003 Settlement Agreement includes these terms:

Clause 4 provides a carve out from clause 3 and specifies acts that Mr Hanley and his companies can do, including using the EASIRENT sign.

A second action was launched by easyGroup in 2019 against Mr Hanley and others for alleged trade mark infringement and passing off by using EASIRENT. The second action was discontinued in 2019 with a declaration by consent of non-infringement and no passing off on the part of the defendants, together with a payment of £125,000 to some of the defendants.

The fourth action was started in April 2024, in which easyGroup alleges that Mr Hanley has acted in breach of the 2003 Settlement Agreement. Judgment in that action has not yet been given.

Jaybank submitted that the 2003 Settlement Agreement shows that the EASI prefix in a compound word cannot be protected. It certainly does not do so directly. The 2003 Settlement Agreement seems to have created rights as between two of Mr Hanley’s companies (not including Jaybank) and easyGroup. Whether it had further impact either in law or as a matter of practical effect is not something to be resolved in this judgment. No defence by reason of a licence under the Agreement was pleaded and I reject the brief suggestion in Jaybank’s skeleton argument that there is a licence. None was established.

The terms of the 2003 Settlement Agreement reflect the strict branding requirements imposed on all licensees of easyGroup’s trade marks. There was in evidence a document setting out the history of the ‘easy’ brand called ‘The easy family of brands photo album’, 6^th ed.. It includes brand guidelines which Mr Anderson described as ‘prescriptive’. I take this to mean that all easyGroup’s licensees are required to comply with the guidelines. There is apparently a brand manual issued to licensees. It was not in evidence but I assume that its contents are consistent with what is said in the album. No doubt Mr Anderson would have mentioned any inconsistency.

Under a heading ‘Key elements of the easy logo and design’ the album identifies what are described as the ‘key aspects of the easy visual identity’. They are first, use of the Cooper Black font. The album says:

It seems that the font was selected by Sir Stelios, presumably in the early days of easyJet, because it is ‘particularly distinctive in comparison with other airlines’ choice of fonts’. The album continues: ‘Stelios wanted a font that would be distinctive in black and white as well as colour because he wanted to advertise the easy family of brands in newspapers which were predominantly printed in black and white.’

This last point about newspapers was raised with Mr Anderson. It was put to him that newspapers are now largely printed in colour so the need to present the brands in black and white was less of a problem. Mr Anderson did not disagree but said that newspapers are a shadow of their former selves and that the world has moved on. He referred to the rise of the internet. I understand him to have meant that much of easyGroup’s advertising is now done using online media, presumably in colour.

The colour in question is orange pantone 021C. Where the brands are presented in colour, which often they are, that precise colour must be used. This is the second key aspect of the ‘easy’ visual identity noted in the album.

The third is that the compound words used for ‘easy’ brands should first have ‘easy’ entirely in lower case followed by the ‘suffix’ – a word which connotes a field of commerce – which must have its first letter in upper case, so easyJet, easyHire and so on.

The ‘easy’ brand guidelines set out in the album contain a long list of ways in which a brand might be presented in ways that slightly differ from the prescribed way, such as the use of shadowing or a hyphen, all of which are stated to be ‘Wrong!’. In other words, strict compliance is required.

The brand guidelines further include this:

Mr Anderson said that all licensees carry this legend on their website although not invariably on the home page.

I find from the foregoing that all trade mark brands licensed by easyGroup, including the Trade Mark, are invariably presented to the public in conformity with the brand guidelines. The evidence at trial was consistent with this, usually showing the Trade Mark in a white Cooper Black font against an orange background, which I assume is pantone 021C, and less often in a black Cooper Black font against a white background.

The law on infringement under s.10(2) of the 1994 Act is well settled and was summarised in Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc [2025] UKSC 25, at [23]:

Conditions (i) to (v) were not in dispute here. Nor was the identity of the average consumer, who characterises the public on whose part the likelihood of confusion is to be assessed. It was agreed that he or she is a person who is interested in hiring a vehicle, in practice usually a motorised vehicle. The court is in as good a position as any adult in the UK to view matters through the eyes of the relevant average consumer.

The point in dispute was the likelihood of confusion.

In Iconix the Supreme Court quoted the test applied by the CJEU:

The same passage in Canon was referred to by Kitchin LJ in Specsavers International Healthcare Limited v Asda Stores Limited [2012] EWCA Civ 24, at [52], where he stated that likelihood of confusion must be judged through the eyes of the average consumer, implying that the risk of the belief identified to in Canon is the risk of such a belief on the part of the average consumer.

The Supreme Court continued its judgment in Iconix by setting out how a likelihood of confusion is to be assessed:

The date on which the likelihood of confusion is to be assessed is the date on which the sign complained was first used, see Levi Strauss & Co v Cassuci SpA (Case C-145/05) EU:C:2006: 264, at [17]-[18].

In Iconix the Supreme Court considered the relevance of the context in which the sign has been used:

In easyGroup Limited v Nuclei Limited [2023] EWCA Civ 1247 Arnold LJ said:

Alternative reasons may explain a lack of direct evidence of confusion other than that there was no significant risk that the average consumer will believe that the relevant goods or services come from the same undertaking or from economically-linked undertakings. Real members of the public might hold such a belief but have no reason to think about it or to draw the belief to anyone’s attention.

In the assessment of the likelihood of confusion the tribunal should assume a notional use of the trade mark as registered irrespective of its actual scope of use, see Gnat and Company Limitedv West Lake East Limited (‘China Tang’) [2022] EWHC 319 (IPEC), at [29]-[34]. It does not, however, follow that the manner in which a trade mark has been used is always irrelevant to the assessment.

Kitchin LJ said this in Specsavers International Healthcare Limited v Asda Stores Limited [2012] EWCA Civ 24, at [96]:

easyGroup complains of Jaybank’s use of its sign in the following ways:

So far as the word itself is concerned, Jaybank has used it in alternative fonts, including stylised and italic fonts. Capitalisation has varied, so the letters may be all in upper case, all in lower case, or in the form EasiHire or Easihire.

There was no dispute that the services provided by Jaybank under its sign are identical or very similar to those of that part of the specification of the Trade Mark relied on.

It was further agreed that the Trade Mark and the sign are aurally identical. easyGroup submitted that conceptually they are identical. Although the last point was not spelt out, I took easyGroup to mean that the common concept is ‘hiring made easy’ or something of that sort. If so, I agree.

As to visual similarity, it was common ground that it is necessary to consider the dominant and distinctive components of the Trade Mark and sign. easyGroup said that the only distinctive part of Jaybank’s sign is the word EASIHIRE. That is because Jaybank has used the sign in arbitrarily different ways, so no distinctive significance will have been attached by the average consumer to the features of the sign which vary. The argument continued: the suffix ‘.co.uk’, where used, is completely non-distinctive and the two swooshes, only occasionally used, are banal additions unlikely to be given significance by the average consumer. Jaybank’s use of the sign in green makes no difference because easyGroup relies on the black and white mark which must be taken to protect against the use of signs in any colour.

This submission notwithstanding, I did not understand easyGroup to go so far as to say that the correct comparison is nothing more than word with word. The appropriate comparison was set out this way in easyGroup’s written submissions:

As appears, easyGroup apparently accepted the relevance of the Trade Mark being in Cooper Black font and with the e in easy in lower case and the H for Hire in upper case. I agree.

I also agree that the suffix .co.uk is non-distinctive and that the swooshes are banal additions. Jaybank relied on neither. There are three visual distinctions so far as the words themselves are concerned: font, use of upper and lower case and the sign’s use of ‘i’ instead of ‘y’ in the word easy. easyGroup dismissed the third of these, arguing that the human eye sees what it expects to see and will not notice a misspelling; alternatively it will be seen as a typo.

Jaybank relied on a further difference between the Trade Mark and the sign, namely the usual presentation of the Trade Mark in the colour orange whereas its own sign is generally used in green. This was not pleaded but became a major plank in Jaybank’s oral argument against infringement. In response easyGroup submitted that the colour in which it has chosen to present the Trade Mark was of no importance because it relies solely on the black and white mark which covers use in any colour, see Specsavers International Healthcare Ltd v Asda Stores Ltd [2012] EWCA Civ 24, at [96]. The point was argued so I will deal with it.

The position on colour is not as clear cut in law as easyGroup suggested bearing in mind easyGroup’s frequent use of the Trade Mark in the colour orange. For reasons explained in Specsavers, the fact that the Trade Mark is in black and white does not necessarily make easyGroup’s usual use of the Trade Mark in orange irrelevant. Whether that is the case will depend on the facts. In Specsavers the trade mark proprietor, Specsavers, relied on trademarks which had no colour content. Even in respect of those marks Specsavers benefitted from its use of the marks in green and from the defendant, Asda, having used its accused signs in green. This was because Specsavers had for many years presented the trade marks to the public in green. Specsavers’ habitual use of green was therefore a factor to be put into the mix of global appreciation.

It seems to me that in principle this could cut both ways. Had Asda instead presented its signs in orange, that would have been a matter to take into account in the global appreciation analysis – this time in Asda’s favour, being a factor against a finding of a likelihood of confusion.

By the time the claim in Specsavers was issued, Specsavers had in the previous 25 years become the largest chain of opticians in the UK with over 630 stores. During that time it had used a logo consisting of two overlapping green ovals with the word Specsavers written across them. As appears from the judgment at [96] (quoted above) Kitchin LJ’s reasoning was based on the trade marks having acquired, through extensive use by the time of the date on which the likelihood of confusion fell to be assessed, a distinctive character in the colour green.

In the present case it was agreed that the relevant time for the assessment of the likelihood of confusion is February 2021. Although the Trade Mark has been on the register since 30 November 2007 easyGroup did not claim to have used it by February 2021. So at that time the Trade Mark had acquired nothing of any sort by way of distinctive character (on top of anything inherently distinctive). Consequently the default position applies: the Trade Mark is registered in respect of all colours with no colour factor influencing the likelihood of confusion.

That leaves a Trade Mark and a sign which are both aurally and conceptually identical, used in respect of identical services. The only differences between mark and sign are visual, being the font, a different use of upper and lower case and the i/y distinction.

Sarah Hindman said that when she sees Cooper Black she thinks of the easyJet logo (see above) but she is apparently a renowned branding expert who no doubt pays attention to these things. The average consumer would pay less attention to that and probably less than Ms Hindman does to the use of upper and lower case letters. There was no evidence to suggest that the average consumer would have known about easyGroup’s strict branding guidelines. Therefore he or she would probably not have assumed that all ‘easy’ brands must conform to the prescribed use of font and upper and lower case lettering. I do not believe that the average consumer would attach importance to the i/y distinction and may have believed that it is a typo if they thought about it at all.

There was no evidence of actual confusion. I find that to be neutral. There was no reason to suppose that any member of the public who assumed an economic connection between the two sources of the services would have given the matter much active thought and no reason to believe that it would have led to anything being said such as to generate evidence.

The foregoing, taken together with the imperfect recollection of the average consumer, leads me to the conclusion that there was a likelihood of confusion within the meaning of s.10(2) unless the compound word EASYHIRE is so descriptive that the average consumer would attach no trade mark significance at all to the word when seen or heard.

Jaybank said that this would indeed have been the case because ‘easy’ and ‘hire’ are both common descriptive words so that when joined into a compound word they are purely descriptive of the services being offered. I asked Jaybank’s counsel whether the same contention would apply to EASYJET. She said that it would and does. That strikes me as an ambitious submission.

I do not accept the contention in respect of either EASYJET or EASYHIRE. EASYHIRE is not self-evidently a word used in the general discourse of English speakers, unless as a trade mark, and there was no evidence to the contrary. In my judgment EASYHIRE, while not being strongly distinctive, is nonetheless sufficiently distinctive to serve as a trade mark.

I find that subject to a defence under s.11A, Jaybank’s use of its sign infringed the Trade Mark under s.10(2) of the 1994 Act.

There was no counterclaim seeking to revoke the Trade Mark or partial revocation, just a pleaded defence under s.11A of the 1994 Act.

Section 11A provides:

Section 46(1) and (3) provide in relevant part:

The criterion applied under s.46(1)(a) is a lack of genuine use, without proper reason, within the relevant five year period. Arnold LJ considered the law on genuine use in easyGroup Ltd v Nuclei Ltd [2023] EWCA Civ 1247, at [130], recently repeated in abbreviated form in easyGroup Ltd v Easyfundraising Ltd [2025] EWCA Civ 1000, at [24] (original ellipses):

Jaybank submitted that the Trade Mark has only been used in relation to services in respect of which it is not registered, or at least in relation to services on which easyGroup does not rely. A similar point was considered in easyGroup v Nuclei, which led Arnold LJ to refer back to earlier authority:

Jaybank argued that because of the reference to s.46(1)(a) and (b) in s.11A(1), if easyGroup first started to use the Trade Mark within the three months before the date on which the action for infringement was brought, easyGroup cannot rely on such use to resist Jaybank’s defence under s.11A.

easyGroup took no point on the pleadings. Jaybank’s pleaded Defence invoked s.11A(3) to request proof of genuine use in the five-year period before the action was brought. In its Reply easyGroup gave particulars of use. It was apparently common ground that Jaybank was entitled to assume that at the trial s.11A was to be applied in full so far as it was relevant and had the point been taken I would have agreed that Jaybank was so entitled.

Before turning to the combined effect of s.11A and s.46, I will address two arguments raised by easyGroup. The first was to point to s.6A of the 1994 Act. Simplifying that section, it provides that the registration of a trade mark may be opposed if an earlier trade mark satisfying certain criteria has been put to genuine use in the UK within the five years ending with the date of application for the mark in issue, or the five years ending with the date of the priority claimed for that application. easyGroup pointed out that there is no qualification in s.6A exempting reliance on use of the earlier mark in the three months before the application for the mark.

I do not see that s.11A can be construed by reference to s.6A. Section 6A is addressing (broadly) what may be done if an earlier trade mark has been registered which is identical to, or excessively similar to, a trade mark sought to be registered at a later date. Sections 11A and 46 have nothing to do with preventing the registration of two trade marks which are too similar.

easyGroup also relied on art.17 of Directive (EU) 2015/2436 (‘the Trade Mark Directive’). After Brexit it may still be legitimate to look at a provision of EU legislation to interpret a UK statute, see IDDQD Ltd v Codeberry Ltd [2025] EWHC 2561 (Ch), at [35]-[37]. Art.17 provides:

easyGroup drew attention to the absence of any 3-month exemption in art.17. That is correct, but just as s.11A of the 1994 Act is qualified by s.46, so art.17 is qualified by art.19:

Art.19(3), like the proviso to s.46(3), prevents the trade mark proprietor from relying on use in the 3-month period preceding the application to revoke the trade mark provided that those 3 months follow the expiry of the five-year period of non-use (subject to the further qualification regarding preparations). There is nothing in arts.17 and 19 which requires ss.11A and 46 to be interpreted in a manner other than according to the normal construction of the words of those sections, at least in so far as the issues arising in this litigation are concerned.

See also Philosophy di Alberta Ferretti Trade Mark [2002] EWCA Civ 921, at [4]-[8].

I begin by considering s.46 as applied to the present facts. Section 11A(1) requires the hypothesis that Jaybank applied to revoke the Trade Mark for non-use on 23 April 2024 under s.46(1)(a). If s.46(1)(a) were to be considered alone on that hypothesis, the application would have succeeded because the Trade Mark was not used for the five years following the completion of its registration - in fact for a good deal longer. No proper reason for non-use was advanced by easyGroup. The first sentence of s.46(3) qualifies that result. If there was genuine licensed use of the Trade Mark before 23 April 2024 easyGroup could have resisted revocation. However, the proviso in s.46(3) adds a further qualification: genuine use of the Trade Mark which did not start before the three months ending on 22 April 2024 would not have saved the Trade Mark from revocation unless preparation for such use had begun before easyGroup became aware that the application might be made. I can leave preparation to one side because it was not contended by easyGroup that there was any evidence of preparation.

Section 11A(1) expressly applies only s.46(1)(a) or (b) but it seems to me to be clear that this means those subsections as qualified by s.46(3) if it applies. Apart from anything else, if that were not the case a trade mark proprietor could never defeat a defence under s.11A by commencing or resuming use of the trade mark in suit once there have been five years of non-use after registration.

Section 11A(4) states that nothing in s.11A(2) or (3) ‘overrides’ any provision of s.46, including the proviso in s.46(3). So far as the proviso is concerned, I take s.11A(4) to mean that where s.11A(2) and (3) apply, although a defendant may request proof of use for the whole of the five year period preceding the start of the action for infringement, the proviso to s.46(3) still prevents reliance by the trade mark proprietor on use of the trade mark in the 3 months before the start of the action to defeat a defence under s.11A, even though that 3-month period falls within the 5-year period of s.11A(3).

Section s.11A(4) reinforces the view that s.46(3), in particular its proviso, is not to be disregarded when s.46(1)(a) and (b) are applied pursuant to s.11A(1).

Pursuant to s.11A(1) Jaybank has a defence to the action for infringement if the Trade Mark was liable to be revoked as of 23 April 2024. On the present facts it would have been vulnerable to revocation unless easyGroup can show that there was genuine licensed use of the Trade Mark before 23 January 2024 in relation to the services on which easyGroup relies.

Jaybank advanced an argument that because easyGroup elected to not to rely on the orange Trade Mark, this amounted to non-reliance on the use of the Trade Mark in the colour orange. Most of the use relied on by easyGroup is of EASYHIRE in white against an orange background, so that use falls away Jaybank said.

I find this hard to follow. The Trade Mark has no colour content and is by convention registered for all colours including orange, see Specsavers at [96]. It follows that where the Trade Mark was presented to the public in orange, that constituted use of the Trade Mark, not use of a variant form of the Trade Mark. (No argument on variants featured at the trial.) This does not somehow change because easyGroup has another mark in the same series which is in orange. Nor does it change because easyGroup took the option of not relying on the orange mark. No disclaimer is to be inferred. Any use of the Trade Mark use in orange counts as use.

easyGroup pleaded two types of use of the Trade Mark, which was supported by the evidence of Mr Anderson and Mr O’Flynn: (1) on a website with the address easyHire.mobi and (2) on a website with the address easyHire.biz. In oral argument, easyGroup added a third category, use in a YouTube video. The YouTube video was pleaded, but not as a self-standing use, rather as an advertisement for the easiHire.mobi website.

The easyHire.mobi website was set up in January 2024 and was operated by easyGroup. There was no evidence of any use of the Trade Mark on this website before 23 January 2024. On that ground alone use of the Trade Mark on easyHire.mobi cannot be relied on by easyGroup.

A point was taken about the services in relation to which the Trade Mark was used on this website and there was detailed argument about it.

What I take to have been the home page of easyHire.mobi prominently featured ‘easyHire.mobi’ and stated ‘Compare and book car hire from over 1,700 brands in over 45,000 locations’. There was a link marked ‘Book your care hire via easy®’ which took the user to the easyCar.com website. easyCar is the name of another member of the easy family of businesses. On the easyCar website consumers can search for, compare and book car hire services provided by many companies including Hertz, Avis and Budget. They can also read driving guides for destinations.

Another page of the easyHire.mobi website stated ‘Explore the easy® family of brands’, below which 24 ‘easy’ brands are listed including easyCar.

Jaybank argued that providing the foregoing link from the easyHire website to the easyCar website was not providing services either by way of the rental of vehicles or providing services by way of information relating to rental or transportation services. The only service that easyHire.mobi offered was access to another website.

easyGroup relied on the evidence of Mr Anderson and Mr O’Flynn. Mr Anderson spoke of the family of easyGroup brands and the collective being greater than the sum of its parts. Mr O’Flynn said that the brand easyHire ‘effectively acts as a sub-brand of easyCar’ and that the ‘aim is for brands to be complimentary and for consumers to perceive easyHire and easyCar representing the same rental business’. That is how Mr Anderson and Mr O’Flynn look at matters but I did not find the evidence helpful.

The issue I have to decide on this aspect of the case is whether the average consumer who visited the easyHire.mobi website would have understood that the undertaking responsible for the easyHire brand was, alone or with others, the origin of, or was giving a guarantee of quality in relation to, the rental of vehicles services and/or information relating thereto, such that the average consumer would have relied on the origin or guarantee in making a decision to use one or more of those services.

The assessment in such cases must depend on the impression of the court based on how the trade mark in suit was presented to the notional average consumer and on any other relevant facts. What was intended at the time by those who were working for or with the trade mark proprietor will be of marginal relevance at most.

The easyHire.mobi website carried no suggestion that car rental services were directly accessible on that site. The average consumer was informed that on another ‘easy’ website he or she could compare 1700 brands providing car hire services and if any was chosen, book a car. Nothing more was said about car rental. I can see no reason to suppose that the average consumer would have believed that all or any of the 1700 car hire brands, including Hertz, Avis and Budget, were controlled in whole or in part by the party responsible for the easyHire website.

As to whether there was an assurance of the quality of the car hire services provided by the 1700 suppliers, it may or may not have been the case that the average consumer would have believed that the party operating the website to which the user was transferred if the link was used – which turned out to be a party trading as easyCar – operated a selection process to arrive at 1700 brands of car hire services. Assuming (I do not find) that this would have been the belief of the average consumer, he or she may accordingly have understood that easyCar had some responsibility for the quality of the car hire services on offer by reason of its process of selection.

However, the easyHire.mobi website was twice removed from the suppliers of car hire services. Even if the average consumer believed that easyCar was in part responsible for those services or their quality, I do not see why, without more information being provided, such responsibility would have been passed up from easyCar to easyHire in the mind of the average consumer. If that were the case it would seem that there could be an endless chain of websites operating under different signs, each with a link to the next in the chain, and the party responsible for each website would be held to provide an assurance of quality for, and would be entitled to claim use of its own sign in relation to, the rental of vehicles offered on the website at the end of the chain as provided by Hertz, Avis, Budget or any other company.

easyCar also claimed use of the easyHire mark in respect of advisory and information services relating to vehicle rental services. I accept that easyCar is offering such information services in that it is informing those who use its website of, among other things, prices offered by car rental companies and vehicle availability. The easyHire website does not provide that information, only a convenient link to the easyCar website where the information is available. For the reason given above, I do not think that the average consumer would have believed that the responsibility for that information was passed up the chain to the party operating the easyHire.mobi website.

There was pleaded reliance on a video which was said to advertise the Trade Mark on the easyHire.mobi website. The video appeared on YouTube but not before January 2024. In cross-examination Mr Anderson said that he did not know the exact date, but agreed that it was on or around 24 January 2024, too late for easyGroup to rely on it.

Mr Anderson also gave evidence about another video on YouTube which he called the ‘easyHistory Video’. In closing easyGroup said that it did not rely on that video.

Accordingly I find that there was no use of the Trade Mark at any time for the services on which easyGroup relies by reason of its appearance on the easyHire.mobi website. easyGroup did not advance any proper reasons for non-use.

The second head relied on by easyGroup was use of the Trade Mark on the easyHire.biz website. This website was and is operated by a licensee of easyGroup, easyHire Technologies Ltd, formerly Rentuu Ltd.

The pleaded use in relation to the rental of motorised vehicles was in two parts:

The claim of use of the Trade Mark for advisory and information services relating to vehicle services likewise fell into two parts, the information being provided (i) under the Trade Mark as an overarching/umbrella brand on the easyHire.biz website and (ii) under the Trade Mark on the easyToolhire website.

EASYHIRE appeared on both the easyHire.biz and the easyToolhire websites, usually in orange. For reasons discussed above, use in orange was potentially use of the Trade Mark.

On what I take to have been the homepage of the easyHire.biz website, the Trade Mark was prominently featured. Below was stated:

Various ‘easy’ hire brands featured on the website, including easyToolhire. There was a link which, when clicked, took the user to the easyToolhire website.

The service being provided under the Trade Mark by the licensee, easyHire Technologies Ltd, was thus spelt out on the easyHire.biz website. It was the provision of technology to a network of licensees in the equipment hire industry so that equipment hire was made easy and accessible, presumably to customers of the licensees. The average consumer was likely to understand that the licensee network consisted of those who provide goods and services under an ‘easy’ brand, several of which were referred to on the easyHire.biz website. One of them was easyToolhire.

There was nothing on any part of the easyHire.biz website shown in the evidence to suggest that the provider of the technology service under the Trade Mark also provided vehicle rental services. On the contrary, the message given to the reader was that there are great benefits to be had from signing up to become a member of the ‘easy’ family of brands and from providing a service under the chosen ‘easy’ brand, and that franchisees also benefit from the technology supplied by easyHire. On one page of the easyHire.biz website there was this, headed ‘Our mission’:

easyGroup said that on the easyHire website, which I take to be easyHire.biz, there was a video advertising easyToolhire and that the video was marked ‘from easyHire’. I have not been able to find the reference to the video in the exhibits provided at the trial, but a statement that the video was from easyHire was fully consistent with the message conveyed elsewhere that technology was supplied by easyHire. That is not the same thing as rental services being supplied.

The average consumer was told on the easyHire.biz website that an example member of the ‘easy’ family, and by inference an existing franchisee, was easyToolhire. If the average consumer clicked through to the easyToolhire website they would see that easyToolhire offers a different service:

On that website the user could search for and book plant and equipment in the United Kingdom. Among the tools on offer were mini-diggers and scissor lifts which have wheels and can be driven from one point to another. easyGroup submitted that these are motorised vehicles, a categorisation not challenged by Jaybank.

On the home page of the easyToolhire website there was the statement ‘easyToolhire is part of the easy family of brands’, below which in prominent Cooper Black font were the brands easyJet and easyHire.

On the last page of the easyToolhire website there was this:

Once again, the reader was told that the service provided by easyHire was the provision of technology and the means to become part of the ‘easy’ franchise network.

I do not accept that easyGroup’s chosen categorisation of the Trade Mark as an ‘overarching’ or an ‘umbrella’ brand makes any difference. I agree it could be said that franchisees of the ‘easy’ brand which provide hire services of one sort or another have presumably all signed up with easyHire. They are all connected with easyHire in that sense and have all used its services. The average consumer would have known this from what is explained on the websites and further would have known that easyHire provided franchisees with useful technology. This does not imply a belief on the part of the average consumer that easyHire took any part in the provision of all (or any) of those hire services, including the hire services provided by easyToolhire. Nor, in my judgment, would the average consumer have believed that easyHire provided a guarantee as to the quality of all the services offered by all the franchisees. Such a guarantee may have been thought to extend to the quality of the technology used by the franchisees and in turn by their customers, but not to the quality of the hire services themselves.

The position is the same with regard to the provision of advisory and information services relating to vehicle services. Such information was provided on the easyToolhire website. It would have been understood to come from a franchisee: easyToolhire, not easyHire.

The Facebook page for easyHire.biz was put in evidence. Use of the Trade Mark in social media was not part of the pleaded case, but in any event the same message was provided to the average consumer:

easyGroup placed particular reliance on the Facebook page on which the Trade Mark was prominently shown, below which it was stated:

There is an explanation next to this announcement:

That taken alone could arguably have been addressed to individuals with a business who wanted to hire equipment or alternatively to potential franchisees who might have wanted to sign up and rent out equipment to consumers. But it would not have been taken alone. On adjacent pages it was clear that potential franchisees were being addressed. On the previous page was easyHire’s mission statement:

Consumers looking to hire a mini digger are not interested in whether the tool hire and equipment rental sector has a huge potential for growth or whether it offers great career opportunities. These Facebook pages are aimed at potential franchisees. The services offered were the means to sign up as a franchisee and the provision of technical support.

Other unpleaded uses were referred to in argument in passing but even if easyGroup were entitled to rely on them, when read in context they reinforced the message to the reader that easyHire provided a franchising service and technology.

Returning to the easyHire.biz website, dates of use of the Trade Mark on the website were not stated. Mr Anderson, who provided evidence about the website, did not even give a date from which the website went online. No figures were stated or estimated for views of the website from the UK. The accounts of easyHire Technologies Limited were made available and were said to evidence use of the easyHire.biz website. They showed that the company has traded in a fairly modest way at least since some time in 2022 but no more than that.

I find that such use of the Trade Mark as there may have been on the easyHire.biz website before 23 January 2024 was in relation to services by way of providing the means to join the ‘easy’ network of hire companies as a franchisee and by way of providing technology to franchisees to make the franchisees’ hire services convenient for their customers to browse and book. The Trade Mark was not used in relation to the services relied on by easyGroup in these proceedings. No proper reasons were given for non-use.

Subject to a valid defence, Jaybank’s use of the EASIHIRE sign infringed the Trade Mark pursuant to s.10(2) of the 1994 Act. Jaybank has a defence under s.11A of the 1994 Act. The claim is dismissed.