easyGroup Limited v Cubico (UK) Limited [2026] EWHC 1645 (IPEC)

[2026] EWHC 1645 (IPEC)Case No IP-2024-000094
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
INTELLECTUAL PROPERTY ENTERPRISE COURT
Venue Rolls Building, New Fetter LaneDate 1 July 2026
London
Before
HER HONOUR JUDGE MELISSA CLARKEsitting as a Judge of the High Court
Between
easyGroup LimitedClaimantCubico (UK) Limited (t/a “Easy Bathrooms”)Defendant
B E T W E E N :
Mr Jamie Muir Wood (instructed by Potter Clarkson LLP) for ClaimantMs Denise McFarland (instructed by Schofield Sweeney LLP) for Defendant
JUDGMENT
[1]This is judgment following a liability-only trial of an action in trade mark infringement brought by the Claimant easyGroup Limited (“easyGroup”) against the Defendant Cubico (UK) Limited (“Cubico”) under s.10(2)(b) and s.10(3) Trade Marks Act 1994 (“TMA”) and in passing off. This is the latest in a long series of judgments arising from actions that easyGroup has brought in trade mark infringement and/or passing off against companies and individuals who use the word ‘easy’ as part of their trading name.[2]easyGroup is a company incorporated in England and Wales in 2000 which was established by Sir Stelios Haji-Ioannou to be the owner and licensor of all intellectual property rights relating to the various “easy” businesses founded by him, the best-known of which is easyJet. The history of easyJet, various other ‘easy’ businesses and the incorporation and business of easyGroup has been set out in previous judgments and so I will not repeat it here.

The Claimant’s rights

[3]At the time of trial, easyGroup was the proprietor of, inter alia, the following UK registered trade marks upon which it relies for the purposes of these proceedings (collectively, the “Registered Marks” and all of those marks together except the easy Mark listed at (iii) below being referred to as the “Reputation Marks”): i) 901232909 for the word mark ‘EASYJET’, filed on 1 July 1999 and registered as of 25 September 2002 for services in classes 39 and 42 (“easyJet Mark”); ii) 2294415 for a series of four marks being two word marks for ‘EASYGROUP’ and ‘easyGroup’ and two device marks: filed on 4 March 2002 and registered as of 17 October 2003 relied on in respect of services in class 35 (“easyGroup Mark”); iii) 901699792 for the word mark ‘EASY’, filed on 9 June 2000 and registered as of 13 July 2006 relied on in respect of services in classes 35 and 39 (“easy Mark”) (now revoked, see paragraph 4 below); iv) 903367695 for the following device mark: filed on 22 September 2003 and registered as of 3 January 2005 for services in class 35 and 39 (“easylife Mark”); v) 901866706 for the word mark ‘easyHotel’, filed on 21 September 2000 and registered as of 30 June 2004 for services in classes 39 and 42 (“easyHotel Mark”); vi) 902760437 the following device mark: filed on 28 June 2002 and registered as of 6 March 2006 relied on in respect of class 3 goods (“easy Windsurfing Mark”).[4]The easy Mark was subject to ongoing cancellation proceedings at the time of trial. However after trial, by decision BL O/0430/26 dated 20 May 2026, it was revoked by the IPO for non-use under s.46(1)(a) and s.46(1)(b) TMA, with an effective date of revocation of 14 July 2011 and invalidated ab initio. However, I was not aware of this until after the judgment had been provided to the parties in draft and it has necessitated changes to the final judgment. easyGroup has produced a table setting out the specifications for the Registered Marks, which for the easylife Mark is marked up to show the services for which each was registered at the date of the claim form, and the services for which each was, at the time of trial, registered following the amendment of the specifications. I have removed the easy Mark from that table following its revocation. That table can be found at schedule 1 to this judgment.[5]easyGroup contends that the easyJet Mark, easyGroup Mark and easyHotel Mark form, together with other specified UK registered trade marks of which easyGroup is the proprietor, a family of marks which, by reason of the extensive use made of them, means that the average consumer understands that a business operating under such marks is associated with easyGroup (the “easy Family of Marks”). It specifically disclaims that the easy Windsurfing Mark and easylife Mark are part of the easy Family of Marks. The other UK registered trade marks said by easyGroup to be in the easy Family of Marks and relied on by easyGroup in these proceedings are: i) 2112956 for EASYBUS; ii) 2266279 for easyCar; and iii) 2184834 for easyMoney and EASYMONEY.[6]Cubico is a company incorporated in England and Wales in 2012. Since the summer of 2013 it has operated a business for the supply of bathroom fixtures and fittings, sanitaryware, tiles and other bathroom goods (“Goods”) to wholesale and retail customers under the trading name of ‘Easy Bathrooms’. Since December 2023 it has also provided bathroom installation services (“Services”). Since 2013 it has consistently and continuously carried on its business online through a website found at www.easybathrooms.com and through a chain of brick-and-mortar showrooms (currently numbering around 150) throughout the UK. Cubico also acquired the www.easybathrooms.co.uk domain in January 2014 which, since that date, has directed traffic to the website at www.easybathrooms.com. Cubico also promotes its business using social media accounts on Facebook, Instagram, Pinterest and TikTok.[7]easyGroup alleges that Cubico has used the following signs to sell the Goods and provide the Services (the “Signs”): a) (“Sign A”) b) (“Sign B”) c) (“Sign C”) d) ‘EASY BATHROOMS’/EASYBATHROOMS’ (“Sign D”) e) EASY LIVING /’EASYLIVING’ (“Sign E”) f) ‘EASY BATH’ / ‘EASYBATH’ (“Sign F”) g) ‘EASY’ in word and stylised forms. (“Sign G”)[8]Cubico is also the proprietor of three UK registered trade marks: i) 3100153 for the following device mark: filed on 19 March 2015 and registered on 12 June 2015 for goods in classes 11, 20 and services in class 35 ( “Cubico’s Earlier Mark”); ii) 3493826 for a word mark ‘EASY BATHROOMS’ filed on 26 May 2020 and registered on 1 January 2021 in respect of various goods in classes 1, 11, 19 and 20 (the “Cubico Word Mark”); iii) 3955914 for a series of four device marks for a stylised representation of the word mark ‘EASY BATHROOMS: SIMPLY LUXURIOUS’, filed on 12 September 2023 and registered as of 8 December 2023 in respect of various goods and services in classes 1, 11, 19, 20 and 35 (the “Cubico Series Mark”):

Trade Marks – General

[9]I shall call the Cubico Series Mark and the Cubico Word Mark together “Cubico’s Later Marks”.

B. SUMMARY OF THE PLEADED CASE

[10]easyGroup claims that: i) use of the Signs amounts to: a) infringement of the easy Mark (now revoked), the easylife Mark and the easy Windsurfing Mark pursuant to s.10(2)(b) TMA; and b) infringement of the Reputation Marks under s.10(3) TMA; ii) passing off in respect of the signs for which the Reputation Marks are registered by advertising and promoting the Services using the Signs. I note for convenience here that easyGroup makes no claim in passing off in relation to the Goods; iii) Cubico’s Earlier Mark should be revoked for non-use pursuant to s.46(1)(b) TMA, alternatively was invalidly registered; iv) Cubico’s Later Marks were invalidly registered.[11]easyGroup relies in this case on: i) two matters which it submits increases the likelihood of confusion for the purposes of s.10(2)(b) TMA infringement, being(a) the existence of the easy Family of Marks and(b) “the fact that easyGroup has educated the public to understand that a business operating under an easy brand is associated with easyGroup”; and ii) two matters which it submits increases the likelihood that the average consumer will link the Signs to the Reputation Marks, being (a) the existence of the easy Family of Marks and (b) the enhanced distinctive quality of the Reputation Marks amongst the relevant public, both individually and collectively, by the use made of them in the UK, which it pleads is further enhanced by the fact that the Reputation Marks (apart from the easylife Mark and the easy Windsurfing Mark) are part of the easy Family of Marks.[12]Cubico denies: i) infringement, on the basis that they deny that use of the Signs causes confusion under section 10(2) TMA or takes unfair advantage and/or causes detriment under s.10(3) TMA; ii) passing off; iii) that Cubico’s Earlier Mark is liable to be revoked for non-use; iv) that Cubico’s Earlier Mark and Cubico’s Later Marks are and always have been invalidly registered pursuant to s.5(2)(b) TMA, s.5(3) TMA and s.5(4)(a) TMA.

Trade Mark Infringement

[13]Cubico admits trading under or by reference to “Easy Bathrooms” from around summer 2013 to date, with its first commercial sales via the easybathrooms.com website in or around March 2014. It pleads that it does not and never has carried on any business in the same field as that of easyGroup, and it has not, at any material time, used the colours and fonts associated with and dominant in the branding of easy Group and associated companies, being orange, or orange and white, and the “Cooper Black” font. It does not admit the existence of the easy Family of Marks.[14]As well as its denial of liability in trade mark infringement and passing off Cubico pleads: i) honest concurrent use relying on easyGroup Limited v Nuclei Limited [2024] FSR 24and Match.Group LLC and Ors v Muzmatch Limited and Anor [2023] EWCA Civ 454; ii) acquiescence pursuant to s.48(1) TMA, relying on a letter of complaint sent by easyGroup (through its then solicitors Stephenson Harwood) to Cubico on 4 September 2018 and relying on Industrial Cleaning Equipment (Southampton) Limited v Intelligent Cleaning Equipment Holdings Co Ltd [2023] EWCA Civ 1451, [2024] FSR 3); iii) s.11(1) and s.11(2) TMA defences; and iv) estoppel.[15]During the course of trial I invited Cubico to consider making such admissions as it was able in relation to use, reputation and goodwill of the various marks and signs of easyGroup. Cubico made the following admissions in a letter from Cubico’s solicitors to easyGroup’s solicitors dated 26 February 2026: i) As of 2013 easyGroup had a reputation in the UK in relation to transportation of passengers and travellers by air and airline services in the name or mark ‘easyJet’ when used in accordance with the text depicted in Cooper Black font and the use of orange pantone 021c; ii) By 2013 easyGroup had used the easyJet Mark in relation to the services for which it is registered in Class 39; iii) As of 2013 easyGroup had a reputation in the UK in relation to temporary accommodation; providing hotel accommodation, reservation services for hotel accommodation; computerised hotel reservation services; room hire services; reservation services for all the aforesaid services, in the name or mark ‘easyHotel’ when used in accordance with the text depicted in Cooper Black font and the use of orange pantone 021c. C. PRELIMINARY MATTER[16]There is a preliminary matter that I will deal with for convenience at the start of this judgment, and that is that easyGroup submits that it is entitled to judgment on the infringement claims brought in respect of Sign E, Sign F and Sign G, because despite admitting the use of the Signs, Cubico did not proffer a defence save for a bare denial.[17]Dealing with admitted use, Cubico admitted use of, inter alia, Sign E and Sign F “at various times between 2013 to date” at paragraph 28 of the Defence, although it was silent in this paragraph about Sign G. However, at paragraph 29 of the Defence Cubico admitted to para 27 of the Particulars of Claim which referred to, inter alia, Annex 5 to the Particulars of Claim as containing screenshots of Cubico’s Website showing use of the Signs. This includes a screenshot of Cubico’s Website showing use of Sign G as a heading to a page containing links to various types of products: “enclosures”, “accessories”, “showers”, “taps” etc. Accordingly, I am satisfied that Cubico has admitted to use of Sign G in the Defence.[18]Paragraph 8 of the Defence sets out a number of facts which Cubico says support its “general defence and denial of liability”, which in paragraph8.1 sets out the history of its use of the trading name or style “Easy Bathrooms”, including launch of the website and use of the easybathrooms.com and easybathrooms.co.uk domains already referred to, and the use of Cubico’s Earlier Mark and Cubico’s Later Mark. It does not refer to Signs E, F or G. In paragraph8.2 it pleads that it has traded for a number of years from a number of locations, but no instances of confusion or mis-association have come to light so far as it is aware. In paragraph8.3 it states it will rely on honest concurrent use of the names/marks and/or signs of which complaint is made, its general denial of the risk of any relevant confusion and its general denial of trade mark infringement as alleged. When we move to the paragraph-by-paragraph responses to the Particulars of Claim, save for the admissions that I have referred to, there is no reference to Signs E, F or G. In paragraph 32 of the Defence, trade mark infringement and passing off is denied with reference to reasons “set out earlier” in the Defence and in correspondence contained in Annex D to the Defence, but those do not deal with Signs E, F and G, only with the “Easy Bathroom/EasyBathroom” signs and Cubico’s trade marks. There is otherwise merely a bare denial.[19]Pursuant to CPR 16.5(1), in a defence the defendant must deal with every allegation in the particulars of claim, stating which of the allegations are denied, which it is unable to admit or deny but require claimant to prove, and which it admits. Pursuant to CPR 16.5(3), where a defendant fails to deal with an allegation, but sets out in the defence the nature of its case in relation to which that allegation is relevant, the claimant is required to prove the allegation. CPR 63.20(1) provides that a statement of case must set out concisely all the facts and arguments upon which the party serving it relies. CPR 16.5(5) provides that subject to sub-paragraphs (3) and (4) (the latter of which relates to money claims and is not relevant to this case), a defendant who fails to deal with an allegation shall be taken to admit that allegation. easyGroup submits that in relation to Signs E, F and G Cubico has either made a bare denial, without setting out the facts and arguments on which it relies as the Defence is silent on this point in breach of CPR 63.20, or it has failed to deal with the allegations but not set out the nature of its case in relation to the allegations of trade mark infringement, in which case it should be taken to have admitted those allegations pursuant to CPR 16.5(5), and in either case it is entitled to judgment.[20]In party to party correspondence, and in response to a request from easyGroup to address the allegations, Cubico’s solicitors provided easyGroup’s solicitors with the following information by an email of 4 February 2026, in response to a letter from them of 12 January 2026 seeking to understand Cubico’s position on infringement. It included the following (my emphasis):
“In relation to the further points which you make, EASY LIVING was a descriptive term used for baths which were easily accessible within our client’s disability range. The EASY LIVING term has not been used for some years. In so far as EASY GUARANTEE is concerned, that was descriptive of the “Easy Bathrooms Guarantee”
. The guarantee has always been called the ”Easy Bathrooms Guarantee”, but it may be that some links, slugs and URLs may have referenced this as EASY GUARANTEE. It was not a sub-brand, but simply a descriptive term or shorthand. EASY (Solus) was used where the website required a range name to be input as part of the design for some small ancillary items which did not have a range name, so the description was used as a placeholder, for example, for basin wastes. It is no longer in use. The EASY BATH reference has been used and is still in use as the Pint[e]rest handle.”[21]This is neither evidence nor pleadings, of course, and it still does not address the allegations beyond use of the Signs. Cubico submits that summary judgment is not open to the Court for trade mark infringement as the case is for the claimant to prove. Of course a claimant is not required to prove an admitted allegation (such as use of the signs), which is the effect of CPR 16(5) relied on by easyGroup. However it is Cubico’s case that it has denied trade mark infringement and passing off by use of all of the Signs, and so it is for easyGroup to prove it.[22]In my draft judgment I found Cubico has failed to address the allegations of trade mark infringement by use of Signs E, F and G by anything other than a bare denial without setting out the facts and arguments on which it relies, despite having admitted the use complained of. However on further consideration I do not think that was an accurate characterisation of the Defence and particularly paragraph 8 of the Defence. Although paragraph8.1 does not refer to Signs E, F and G explicitly it does describe the trade that Cubico carried out under the trading name ‘Easy Bathrooms’ including on the website since 30 July 2013 with first commercial sales on the website from around March 2014, and the use admitted by Cubico of Signs E, F and G are screenshots from that website. The pleading at paragraph8.2 that although Cubico has traded for a considerable number of years and on a considerable scale, no instances of confusion have come to light is an argument that must apply to all the Signs complained of used in the course of that trade. Paragraph8.3 specifically pleads that Cubico will rely on honest concurrent use of all the “signs of which complaint is made” to support its “general denial of liability”. This encompasses Signs E, F and G as much as it does Signs A-D, but no complaint is made about the adequacy of the nature of Cubico’s case in respect of the denial of liability arising from use of those Signs. I also agree with Cubico’s submission that where there is a denial of liability, as I am satisfied there is in relation to all of the Signs, and not just a non-admission, it is easyGroup’s case to prove as claimant. Accordingly I decline to grant judgment to easyGroup in respect of those allegations on what amounts to a summary basis. C. THE ISSUES[23]The issues for my determination were set at the case management conference on 2 July 2025 before His Honour Judge Hacon and are found at Schedule 2 to this judgment. In fact, Issue 20 (detriment to repute of the Registered Marks) and Issue 21 (due cause) were not pleaded or prayed in aid respectively and so are not matters I need to determine.[24]I also note that easyGroup did not pursue Issue 22 (whether use of the Signs affect functions of the Registered Marks) at trial so I will not consider it further, and Cubico pursued Issue 23(a) (acquiescence) in relation to Cubico’s Earlier Mark only.[25]Finally, easyGroup stated through Mr Muir Wood in closing that it is content for its passing off claim to stand or fall with the s.10(2)(b) TMA infringement claim. Accordingly I will not consider Issues 6, 7 and 8 (relating to existence and ownership of goodwill), 24 (misrepresentation) and 25 (damage). D. THE WITNESSES

easyGroup’s witnesses

[26]I heard from four witnesses for easyGroup.[27]The first was Mr Chrysostomou Elias Chrysostomou, who in late December 2025 after his witness statement of 19 December 2025 was filed became the sole director and person with overall control of easylife Limited. However he has been involved with the business of easylife since its inception, in his role as Managing Director of Direct Response Marketing Group Ltd which carried out operational functions for easylife as a third party contractor. He provided evidence in chief about his new role and was cross-examined. His evidence was mainly about the scale of easylife’s operations and marketing, and its use of the easylife Mark and the sign ‘easylife’.[28]The second was Mr Anthony John Anderson. He is not an employee of easyGroup or any other company in the easy group of companies, but is retained as a part-time external consultant by easyGroup. He provided evidence to this Court about the history of easyGroup’s brands and branding as he has done many times before for easyGroup in other trials of trade mark infringement and passing off cases in which it is the claimant. He gave a witness statement dated 22 December 2025, was cross-examined and re-examined.[29]The third was Mr Daniel Thompson, who has been the marketing director of easyHotel since 2023. He provided evidence in his witness statement of 22 December 2025 and in his cross-examination about easyHotel’s use of the easyHotel Mark and sign, the easyGroup and easyHotel brand guidelines and the marketing of easyHotel.[30]Finally was Mr Darren Mosley, who is a director and the CEO of Easy Cleaning Solutions Ltd. This is a manufacturer of cleaning solutions previously known before 2017 as Jeyes Ltd and is an exclusive licensee from easyGroup of the easy Windsurfing Mark. He provided evidence in his witness statement of 22 December 2025 and in cross-examination about the use of the easy Windsurfing Mark and sign in the course of his business’s trade and the extent to which the easyGroup brand guidelines were applicable to his business.[31]I found all of easyGroup’s witnesses to be straightforward and professional. Ms McFarland in closing made clear that Cubico does not criticise the credibility or reliability of any of them who, she submits, gave reasonable evidence which did not materially change from their witness statements. I accept that. I note here that none had, to their recollection, ever visited any of Cubico’s showroom or had any prior knowledge of Cubico’s business.

The Defendant’s witnesses

[32]These were all employees of Cubico: Mr Craig Alan Waddington, managing director; Mr Steven Paul Browett, director and chief technology officer; and Mr Lee Reed, head of marketing. They all gave witness statements dated 21 December (Mr Waddington) or 22 December 2025, were cross-examined and re-examined. easyGroup described Mr Waddington and Mr Reed as “slightly wary” witnesses, which I accept, but I do not consider that it affected the credibility or reliability of the evidence which they gave. This included their accepting several propositions put to them by Mr Muir Wood in cross-examination on which easyGroup relies. No criticism is made of Mr Browett who gave entirely straightforward evidence. I found all of these witnesses to be both credible and reliable.[33]Mr Waddington’s evidence was that Cubico began trading under the name “Easy Bathrooms” in summer 2013, after several false starts with different trade names, and this name was chosen because it reflected what Cubico was trying to achieve, which was making the bathroom buying experience easier for customers. Mr Browett says that he came up with the name which he liked because it was memorable and perfectly encapsulated Cubico’s simple approach to buying a bathroom, and the website was designed around simplicity. Mr Waddington said that at the time he had no intention of referring to or drawing any connection with easyGroup or easyJet. Mr Browett in cross-examination said that he knew about easyGroup when he chose the “Easy Bathrooms” name, but says in his witness statement that he did not at any point consider there to be any overlap, likeness or potential confusion between Cubico’s brand and the easyGroup brands, and he highlights what he perceives to be the visual and conceptual differences in his witness statement. Of course that is a matter for me to assess. Mr Browett said that he was also aware in 2013 that easyGroup had taken action against a local car cleaning company called EasyValet which he described as “copy and paste plagiarists”, but wasn’t sure if that was before or after the “easy Bathrooms” name had been chosen.[34]Mr Waddington’s evidence is that from the outset the business has operated entirely in the bathroom retail, wholesale and home improvement sector. It has grown quickly from the first showroom in Leeds in 2013 to c.150 showrooms throughout the UK today. Cubico’s turnover for the financial year ending 2025 was £110 million. He says that at the time of his witness statement Cubico employed 1050 full time equivalent employees across retail, distribution, warehousing, logistics, design, customer service and head office teams. This evidence was not challenged in cross-examination.[35]Mr Waddington’s evidence is that from 2013 it was trading under a sign or signs similar to Cubico’s Earlier Mark, which it filed on 19 March 2015. Mr Browett calls that initial branding, with a device depicting a blue water drop falling into a basin, “aesthetically weak”. Mr Reed says that it was used in at least 5 stores which he is sure of, and likely more than that. Accordingly, it took a decision to rebrand in October 2015 at a time that it was continuing to scale the business. Mr Waddington said that one of its existing corporate investors raised a concern that easyGroup might object to use of the word ‘easy’ in its trading name. He said in his witness statement that was the first occasion that he became aware that easyGroup actively enforced its trade marks in relation to the word ‘easy’, and that because of that concern, Cubico’s investor obtained professional trade mark advice on whether Cubico’s branding created any risk of confusion with easyGroup’s marks. Mr Browett also said that Cubico “sought legal advice at the time and were satisfied that there was no confusion or infringement between our brand and [easyGroup’s]”.[36]In fact, the disclosed correspondence about this appears to show that although enquiries were made of a solicitor who provided options about how her firm could assist, and although there appears to be some internal discussion at Cubico about whether they should take up the solicitor’s offer of an initial review, there is no evidence that trade mark advice was actually received either by Cubico or by the investor. Mr Waddington in cross-examination said that to his knowledge no initial review took place, but he does not know what conversations Cubico’s investor had with their legal advisors. I am satisfied on the balance of probabilities that Cubico did not receive any such advice.[37]In his witness statement Mr Waddington says “As a result of that advice, I instructed our internal teams not to use orange as a principal or dominant brand colour, due to its strong association with the easyJet/easyGroup family of marks. This instruction has remained in place and has been followed consistently”. Although he conceded that he had not received the advice referred to, he remained consistent in cross-examination that he did give such instruction. It was put to him that this was an attempt to reinvent what happened in 2015, and he denied it, saying “What do you mean? Orange isn’t in our brand guidelines… there was no need to use orange as a colour”.[38]I accept his evidence as I found him convincing, Mr Reed confirmed that such an instruction had been given on the 26 March 2015 “never to use the colour orange” and provided documentary evidence of that instruction, and he said that caused him to instruct the firm working on the rebrand to remove the colour orange from “sale” banners and trade messaging which was contained in their initial proposal. He said they replaced it with yellow for trade and salmon red for sale promotions. Mr Reed also said in cross-examination that he was aware that the instruction was because Mr Waddington was trying to differentiate Cubico’s ‘Easy Bathrooms’ branding from that of easyGroup. There is no orange anywhere that I have seen in Cubico’s website, brand guidelines or other trading or marketing materials in the trial bundles. It was suggested to both Mr Waddington and Mr Reed that yellow and salmon red were not far removed from the colour orange, but they gave that short shrift and that argument was not put to me in closing. I would not have accepted it if it was. As Mr Reed said, “they are all different colours”.[39]Mr Waddington’s evidence was that he instructed Mr Reed to carry out a search of Cubico’s email archive searching against the various Marks and signs to which easyGroup has referred in these proceedings and he did not find any evidence of confusion of any third parties between Cubico’s ‘Easy Bathrooms’ brand and those of easyGroup over 12 years of trading. Mr Reed’s evidence is that he also carried out searches across Meta’s centralised messaging system, which aggregates historic direct messages from Facebook and Instagram, and across Easy Bathrooms’ 11.000+ Trustpilot reviews, and found no results. He gave evidence about the social media metrics Cubico achieved under its “Easy Bathrooms” brand, which show significant monthly views, e.g. 3 million on Instagram, 1.9 million on Facebook. He said that in his experience as Head of Marketing, if any material confusion existed between Easy Bathrooms and easyGroup it would be likely to surface through these channels and it had not. Neither he nor Mr Reed were challenged on this evidence.[40]Mr Waddington says that in September 2018 Cubico received a letter from easyGroup’s solicitors dated 4 September 2018 alleging that it was infringing its trade marks and passing off. He sought advice from Cubico’s solicitors who responded on 11 September 2018 denying the allegations. Following that response, Cubico had no more contact from easyGroup for over five years, during which time it continued to trade as before, from its website and through an increasing network of stores, under the ‘Easy Bathrooms’ sign and under Cubico’s Earlier Mark which had been registered on 12 June 2025 and the Cubico Word Mark registered on 1 January 2021. The next letter from easyGroup’s solicitors was dated 13 October 2023. The Cubico Series Mark registered on 8 December 2023 and the claim form in these proceedings was issued in August 2024. E. RELEVANT DATES[41]There are a number of relevant dates in relation to which the Court must carry out assessments, some agreed and some disputed.

Invalidity

[42]It is agreed between the parties that for the purposes of considering invalidity, that is assessed at the filing date (or if earlier, the priority date) of the relevant mark, namely: i) 19 March 2015 for Cubico’s Earlier Mark; ii) 26 May 2020 for the Cubico Word Mark; and iii) 12 September 2023 for the Cubico Series Mark.

Acquiescence

[43]It is agreed between the parties that for the purposes of assessing acquiescence, the relevant date is the date that the trade mark is registered. For Cubico’s Earlier Mark (which is the only one in relation to which acquiescence is pursued) the relevant date is 12 June 2015.

Infringement (and passing off)

[44]There is no dispute between the parties on the law relating to the relevant date for infringement (and passing off, albeit as explained I will not be considering that separately), namely that it is the date when the acts complained of commenced in the UK. They agree that is Summer 2013, when Cubico adopted the trading name ‘Easy Bathrooms’.[45]There is also no dispute that, per W3 Ltd v easyGroup Ltd [2018] EWHC 7 (Ch), [2018] FSR 16 at [214], a “new global assessment has to made” …“where the defendant has been using the sign for some time and/or where circumstances change during the course of the defendant’s use… if the defendant used the sign in a materially different manner or context at a later date…”. The relevant date for any such fresh assessment is the date of the material change.[46]There is also no dispute between the parties that Cubico’s business underwent a rebrand in mid-2015, at which time it began to phase out use of Cubico’s Earlier Mark and started trading under Sign A, Sign B and Sign C, which was a material change of use of the ‘Easy Bathrooms’ sign such that the Court must carry out a fresh assessment as of mid-2015.[47]However there is a dispute about whether this case requires a further fresh assessment at a later date. easyGroup’s position has changed slightly since its pleaded case, during the trial, and in closing submissions, but it now submits in its amended skeleton for closing that Cubico’s launch in September 2023 of its first national television advertising campaign is use of the sign ‘Easy Bathrooms’ in a materially different manner or context, requiring the Court to carry out a fresh assessment as of that relevant date. Cubico disagrees. I will come back to that in my consideration of Issue 2.

Revocation for non-use of Cubico’s Earlier Mark

[48]I do not understand that there is any dispute between the parties that Cubico must show genuine use of Cubico’s Earlier Mark in the 5 year period prior to issue of the claim form on 14 August 2024, i.e. from 14 August 2019 to 13 August 2024. F. AVERAGE CONSUMER[49]The parties agree that the average consumer for the goods and services for which the Reputation Marks are registered is an adult member of the general public paying a moderate degree of attention. G.

Infringement – s.10(2)(b) TMA

(b) TMA

[50]S.10(2)(b) TMA provides: 10(2) A person infringes a registered trade mark if he uses in the course of trade a sign where because –(a) …(b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark.[51]The Supreme Court at [23] of Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc [2025] UKSC 25, [2025] Bus. LR 1391 set out six conditions which must be satisfied to establish s.10(2)(b) infringement: i) There must be use of a sign by a third party within the UK; ii) The use must be in the course of trade; iii) It must be without the consent of the proprietor; iv) It must be of a sign which is at least similar to the trade mark; v) It must be in relation to goods or services which are at least similar to those for which the trade mark is registered; and vi) It must give rise to a likelihood of confusion on the part of the public.[52]It is only (iv), (v) and (vi) which are in dispute in this case.[53]In relation to likelihood of confusion, there is no dispute in relation to the law. A likelihood of confusion arises if a significant proportion of the relevant public (i.e. a significant number of people with the characteristics of the average consumers of the goods or services in issue) are likely to be confused.[54]A standard summary of the principles established by authorities of the Court of Justice of the EU as to the correct manner to assess likelihood of confusion, expressed in terms referable to the registration context, has been adopted in this jurisdiction, as set out below (see, for example, the Court of Appeal in easyGroup Limited v Easy Live (Services) Limited and Ors [2025] EWCA Civ 946 at [21] and Arnold LJ in Sazerack Brands LLC v Liverpool Gin Distillery Ltd [2021] EWCA Civ 1207 at [8]-[9]):
“(a) the likelihood of confusion must be appreciated globally, taking account of all relevant factors; (b) the matter must be judged through the eyes of the average consumer of the goods or services in question, who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind and whose attention varies according to the category of goods or services in question; (c) the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details; (d) the visual, aural and conceptual similarities of the marks must normally be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components, but it is only when all other components of a complex mark are negligible that it is permissible to make the comparison solely on the basis of the dominant elements; (e) nevertheless, the overall impression conveyed to the public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components; (f) and beyond the usual case, where the overall impression created by a mark depends heavily on the dominant features of the mark, it is quite possible that in a particular case an element corresponding to an earlier trade mark may retain an independent distinctive role in a composite mark, without necessarily constituting a dominant element of that mark; (g) a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa; (h) there is a greater likelihood of confusion where the earlier mark has a highly distinctive character, either per se or because of the use that has been made of it; (i) mere association, in the strict sense that the later mark brings the earlier mark to mind, is not sufficient; (j) the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense; and (k) if the association between the marks creates a risk that the public might believe that the respective goods or services come from the same or economically-linked undertakings, there is a likelihood of confusion.”
[55]The same principles are applicable when considering infringement, but it is necessary for this purpose to consider the actual use of the sign complained of in the context in which the sign has been used: see the judgment of Arnold LJ in Sazerac v Liverpool Gin at [9] relying on, inter alia, Specsavers International Healthcare Ltd v Asda Stores Ltd [2012] EWCA Civ 24; [2012] FSR 19 at [87] (Kitchin LJ: “…The sign is not to be considered stripped of its context”.).[56]In his closing submission for easyGroup Mr Muir Wood said that he was not formally abandoning its case on direct confusion but its primary case was now one of indirect confusion. This is a sensible position. Although not determinative of the point, despite some 13 years of parallel trade there has not been disclosed or put before the Court any evidence of any consumer mistaking the Signs for any of the Registered Marks or vice versa, and Cubico’s witnesses, who I am satisfied are credible and reliable, deny knowing of any evidence of direct confusion.[57]Indirect confusion is where the consumers do not mistake the sign for the trade mark, but believe that goods or services denoted by the sign come from the same undertaking as goods or services denoted by the trade mark or from an undertaking which is economically linked to the undertaking responsible for goods or services denoted by the trade mark. Arnold LJ provided helpful guidance about how a Court should approach issues of likelihood of indirect confusion in Sazerac at [10] – [14], with reference to helpful guidance given by Mr Ian Purvis QC sitting as the appointed person in LA Sugar Ltd v Back Beat Inc (O/375/10) and Mr James Mellor QC (as he then was) sitting as the appointed person in Cheeky Italian Ltd v Sutaria (O/219/16). I will not set those out those paragraphs here but I have them in mind.[58]As already explained, easyGroup relies on two matters said to increase likelihood of confusion for the purposes of s.10(2) infringement: the easy Family of Marks and enhanced distinctive character of the Reputation Marks.

Family of Marks

[59]The law in relation to families of marks was considered by Arnold J (as he then was) in W3 v easyGroup who provided the following guidance at [234] and [235]:
“234. Family of marks. Where it is shown that the trade mark proprietor has used a "family" of trade marks with a common feature, and a third party uses a sign which shares that common feature, this can support the existence of a likelihood of confusion. As the Court of First Instance (as it then was) explained in Case T- 287/06 Miguel Torres v Office for Harmonisation in the Internal Market [2008] ECR II-3817: "79. As regards the applicant's argument that its earlier marks constitute a 'family of marks' or a 'series of marks', which can increase the likelihood of confusion with the mark applied for, such a possibility was recognised in BAINBRIDGE and confirmed in Case C-234/06 P Il Ponte Finanziaria [2007] ECR I-7333. "79. As regards the applicant's argument that its earlier marks constitute a 'family of marks' or a 'series of marks', which can increase the likelihood of confusion with the mark applied for, such a possibility was recognised in BAINBRIDGE and confirmed in Case C-234/06 P Il Ponte Finanziaria [2007] ECR I-7333. 80. According to that case-law, there can be said to be a 'series or a 'family' of marks when either those earlier marks reproduce in full the same distinctive element with the addition of a graphic or word element differentiating them from one another, or when they are characterised by the repetition of the same prefix or suffix taken from an original mark (BAINBRIDGE, paragraph 123). In such circumstances, a likelihood of confusion may be created by the possibility of association between the trade mark applied for and the earlier marks forming part of the series where the trade mark applied for displays such similarities to those marks as might lead the consumer to believe that it forms part of that same series and therefore that the goods covered by it have the same commercial origin as those covered by the earlier marks, or a related origin. Such a likelihood of association between the trade mark applied for and the earlier marks in a series, which could give rise to confusion as to the commercial origin of the goods identified by the signs at issue, may exist even where the comparison between the trade mark applied for and the earlier marks, each taken individually, does not prove the existence of a likelihood of direct confusion (BAINBRIDGE, paragraph 124). When there is a 'family' or a 'series' of trade marks, the likelihood of confusion results more specifically from the possibility that the consumer may be mistaken as to the provenance or origin of goods or services covered by the trade mark applied for and considers erroneously that that trade mark is part of that family or series of marks (Il Ponte Finanziaria, paragraph 63). 81. However, according to the above case-law, the likelihood of confusion attaching to the existence of a family of earlier marks can be pleaded only if both of two conditions are satisfied. First, the earlier marks forming part of the 'family' or 'series' must be present on the market. Secondly, the trade mark applied for must not only be similar to the marks belonging to the series, but also display characteristics capable of associating it with the series. That might not be the case, for example, where the element common to the earlier serial marks is used in the trade mark applied for either in a different position from that in which it usually appears in the marks belonging to the series or with a different semantic content (BAINBRIDGE, paragraphs 125 to 127)." 235. I do not understand it to be in dispute that it is not necessary for this purpose for all of the trade marks in the family to have been registered at the relevant date, provided that at least one was registered, and a number were in use.”
[60]easyGroup has argued for the existence of an easy family of marks in multiple cases before the courts of England and Wales. The parties rely on a number of these cases, in easyGroup’s case to support their case for an easy Family of Marks as pleaded in this case, and in Cubico’s case, to support its case that the easy Family of Marks as pleaded does not exist. I have considered them all. They are all decided on their own pleadings and evidence and I have decided this case on the pleadings and evidence before me.

Acquired Distinctive Character

[61]Acquired distinctiveness was reviewed by Arnold J as he then was in W3 Ltd v easyGroup at [156] to [163]. I will not set that out in full here. I will note in particular that at [160] he stated that relevant evidence may include not only the nature of the mark itself, but also “(i) the market share held by goods bearing the mark, (ii) how intensive, geographically widespread and long-standing the use of the mark has been, (iii) the amount invested by the proprietor in promoting the mark, (iv) the proportion of relevant class of persons who, because of the mark, identify the goods or services as emanating from the proprietor, (v) evidence from trade and professional associations and (vi)… an opinion poll.” I note that I have no evidence from trade or professional associations or an opinion poll in this case.

Section 10(3) TMA Infringement

[62]The approach to infringement under s.10(3) TMA is set out in Lidl Great Britain Ltd v Tesco Stores Ltd [2024] EWCA Civ 262, [2024] FSR 17 at [13], where Arnold LJ set out the nine conditions which must be satisfied. Of those, the matters which were in dispute at trial were: i) Whether the Reputation Marks have a reputation in the UK; ii) Whether Cubico has used a Sign or Signs which are identical with or similar to the Reputation Marks; iii) Whether the use gives rise to a link between the Sign or Signs and Reputation Marks in the mind of the average consumer; and iv) Whether that gives rise to one of the types of injury set out in s.10(3).

Reputation

[63]The question of whether a mark has a reputation is well established, from General Motors Corp v Yplon SA (C-375/97) EU:C:1999:408, [2000] RPC 572. It is not a high bar.

Revocation for non-use

[64]S.46(1) TMA provides that the registration of a trade mark may be revoked on either of the following grounds:(a) within the period of five years following the date of completion of the registration procedure it has not been put to genuine use in the United Kingdom, by the proprietor or with his consent, in relation to the goods or services for which it is registered, and there are no proper reasons for non-use;(b) that such use has been suspended for an uninterrupted period of five years and there are no proper reasons for non-use.[65]easyGroup relies on s.46(1)(b) TMA in this case. Non-use means non-token use as an origin identifying sign, per Ansul BV v Ajax Brandbeveiliging BV (C-40/01) EU:C:2003:145, [2005] Ch 97.

Variants

[66]S.46(2) provides that for the purposes of s.46(1), “use of a trade mark includes use in a form (‘the variant form’) differing in elements which do not alter the distinctive character of the mark in the form in which it was registered, (regardless of whether or not the trade mark in the variant form is also registered in the name of the proprietor), and use in the United Kingdom includes affixing the trade mark to goods or to the packaging of goods in the United Kingdom solely for export purposes.”[67]In easyGroup v Easy Live Arnold LJ approved the summary of the law provided by

the judge at first instance, Nicholas Caddick KC, when he said at [40]:

“The law with regard to what constitutes a variant form of a registered mark under s.46(2) of the Trade Marks Act 1994 was considered by Arnold J in Walton v Verweij Fashion [2018] EWHC 1608 (Ch) at [119] to [123]. From this, I note the following: a. The objective of s.46(2) is to allow the proprietor of the mark, in the commercial exploitation of the sign, to make variations in the sign, which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned (see Walton at [119], citing Case C-252/12 Specsavers International Healthcare Ltd v Asda Stores Ltd at [29]). b. There are two parts to the necessary inquiry. First, to identify the points of difference between the mark as used and the mark as registered and, second, to ask whether those differences alter the distinctive character of the mark as registered (see Walton at [120], citing BUD and BUDWEISER BUDBRAU Trade Marks [2002] EWCA Civ 1534). c. The normal approach to the assessment and comparison of distinctive character applies in this context. Accordingly, it is necessary to analyse the ‘visual, aural and conceptual’ qualities of the mark as used and of the mark as registered and to make a ‘global appreciation’ of their likely impact on the average consumer (see Walton at [120]-[121], citing BUD andBUDWEISER BUDBRAU at [45] and Case C-501/15 European Union Intellectual Property Office vCactus SA at [68]-[71]).”
[68]The burden of proving use is on the proprietor of the registration. J. DETERMINATION OF ISSUES Cubico’s Acts Issue 1 – When did Cubico begin to make use of each of the Signs in the United Kingdom?

J. DETERMINATION OF ISSUES

[69]I remind myself that I have already dealt with the question of admitted use of Signs E, G and F as a preliminary matter.[70]Cubico in its defence admits use of the Signs A-C, in the Defence but is silent about Sign D, being ‘EASY BATHROOMS’/’EASYBATHROOMS’.[71]However Cubico also admitted in the Defence paras 27, 28 and 29 of the Particulars of Claim which referred to, inter alia, Annex 5 and Annex 6 to the Particulars of Claim. Annex 5 contains screenshots of Cubico’s website showing use of the Signs, including ‘EASY BATHROOMS’ in non-stylised form in website text, links and tabs (e.g. “Our guarantees cover Easy Bathrooms products only”), and ‘EASYBATHROOMS’ in the domain name and website address. Annex 6 contains screenshots of Cubico’s social media accounts under the Signs, including Facebook (‘easybathroomshop’), X (“easy_bathrooms’), Instagram (‘easybathrooms’) and YouTube’@easybathrooms’). Accordingly, use of Signs A-D appears to be admitted. Cubico is also not raising a s.11A TMA defence. It follows that I accept Mr Muir Wood’s submission for easyGroup that it does not need to prove use of the marks.[72]In terms of the dates of commencement of use, Cubico’s pleaded case, which stands as evidence in IPEC, is that: i) it commenced business in the sale and supply of bathroom fixtures, fitments, sanitaryware and tiles in or about 2012; ii) it first began using the trading name or style ‘Easy Bathrooms’ and ‘Easy’ in or about the summer of 2013 following development of a design concept in May 2013; iii) its domain ‘easybathrooms.com’ went live on or about 30 July 2013; iv) the domain easybathrooms.co.uk was acquired in January 2014; v) it made its first commercial sales via the website using the domain in or about March 2014; vi) it had a gradual rollout of the new logo design (Signs A, B and C) commencing from mid-2015 with the website being upgraded on 10 October 2015; vii) it used, inter alia, Sign E and Sign F “variously and at various times between 2013 to date”.[73]None of this evidence was challenged in cross-examination. Mr Waddington’s evidence reiterated the pleaded case and added that the first showroom under the ‘Easy Bathrooms’ brand was opened in Leeds in 2013. Cubico’s witnesses accepted the use of Signs E, F and G on the screenshots contained in Annex 5 but say they have not been used for some time.[74]Taking all the evidence into account and doing the best I can, I am satisfied on the balance of probabilities that Cubico commenced use of Sign D in or around summer 2013 and that it commenced use of Signs A – C, E, F and G in or around mid- 2015. Issue 2 – What is/are the relevant date(s) for assessment of trade mark infringement (and passing off)?[75]As set out above, much of this is agreed. For the first assessment it is Summer 2013, then mid 2015. The question which remains is whether Cubico’s launch of their first national television advertising campaign in September 2023, as evidenced by Mr Reed in his witness statement, amounted to use of the Signs in a materially different manner or context such that it requires a fresh assessment at that relevant date. Mr Reed’s written evidence was merely a statement that they had launched such a campaign at that time. It provided no further details.[76]It was put to Mr Reed in cross-examination that Cubico had not advertised on television before, and he agreed. He also agreed that the campaign gave Cubico an audience across the whole of the UK. His written evidence was that the television advertising gave them increased national visibility. However neither he nor any other witness was asked on behalf of easyGroup what previous advertising Cubico had done, the extent and duration of that television campaign or whether they considered this did amount to use of the Signs in a materially different manner or context to previously. Mr Reed’s written evidence is that before 2014 Cubico grew the brand “through a combination of local advertising, including magazines, radio and press, as well as more national marketing activity”. He described exhibiting at major events including the Ideal Home Show in London and the Home Building and Renovating Show at the NEC in Birmingham, but he was not asked if this was the only national marketing activity that Cubico had undertaken. Ms McFarland submits that the Court can be satisfied that Cubico had a national advertising presence in the UK 2023 because of its website and its network of around 150 UK showrooms (with advertising materials shown in images in the bundle both inside and outside the stores), and I accept this submission.[77]easyGroup appear to be asking me to infer that a nationwide television advertising campaign of any type by Cubico, because they had not advertised on television before, is necessarily use of the Signs in a materially different manner or context despite there being before the Court little evidence of the manner or context of Cubico’s previous use of the Signs in advertising or marketing otherwise than via the website and showrooms. It could have sought to adduce additional evidence on these points from Cubico’s witnesses in cross-examination, but chose not to do so. I decline to draw that inference. I am not satisfied on the balance of probabilities that there it was use of the Signs in a materially different manner or context to previously and so I do not find that a fresh assessment as at 2023 is required. easyGroup’s Rights Issue 3 – A the relevant date(s) of assessment, whether and to what extent each of the Reputation Marks:(a) had a reputation in the UK and, if so, for which goods and/or services; and/or(b) had enhanced distinctive character in the UK and, if so, for which goods and/or services?

easyGroup’s Rights

[78]The Reputation Marks are the easyJet Mark, the easyGroup Mark, the easylife Mark, the easyHotel Mark and the easy Windsurfing Mark. For the purposes of this issue I am considering enhanced distinctive character only as a result of the use made of the relevant mark, not any enhancement that may arise from the easy Family of Marks which I will consider pursuant to Issue 4.[79]Cubico submits that: i) easyGroup cannot support its pleaded claimed rights in the easy Windsurfing Mark when Mr Mosley’s evidence was that in late 2020 or early 2021 easy Cleaning assigned its rights accrued in relation to “easy” (including its historic rights) to easyGroup who had licensed these rights back to easyClean on an exclusive basis for 50 years. In oral submissions Ms McFarland submitted that left easyGroup with no rights to take action for trade mark infringement in relation to the Windsurfing Mark. However easyGroup relies on s.30 TMA which I agree provides the answer: s.30(1) provides that except so far as the licence provides otherwise a licensee may only bring proceedings for infringement of the registered trade mark with the consent of the proprietor subject to s.30(2) and (3). S.30(2) provides that an exclusive licensee may call on the proprietor of the registered trade mark to take infringement proceedings in respect of any matter which affects his interests. I am satisfied on the evidence before me that easyGroup, who it is not disputed is the registered trade mark proprietor, is able to bring the action in respect of the Windsurfing Mark. ii) easyGroup has not proved that reputation/goodwill arising from trade before the relevant dates under those Reputation Marks which were transferred to easyGroup after the relevant dates (being the easylife Mark and the easy Windsurfer Mark) had accrued to easyGroup, but the relevant witnesses confirmed that all rights had been assigned to easyGroup, including historic rights and goodwill, and I accept that evidence; iii) where a Reputation Mark had been licensed by easyGroup on an exclusive basis, reputation/goodwill accrued to the licensee and not easyGroup. I do not accept this is correct as a matter of law. I accept easyGroup’s submission that goodwill/reputation arising from use of a trade mark in the course of trade accrues to the trade mark itself. Cubico admits that easyGroup is the proprietor of all of the Registered Marks, whether licensed or not.

easyJet Mark

[80]As noted, Cubico has made a limited admission that by 2013 easyGroup had a reputation in the UK in the easyJet Mark in relation to the transportation of passengers and travellers by air, airline services (its specification for the Class 39 registration), when used in accordance with the text depicted in Cooper Black font and the use of orange pantone 021c.[81]I do not know why Cubico have sought to limit it in by reference to font and colour. Cubico seek to rely on the pithy assessment of Arnold J at [237] of W3 v easyGroup in which he discusses distinctive character of marks derived from a combination of elements, but the easyJet Mark is a word mark not limited in colour, not a device mark involving elements including colour and font. The company accounts for easyJet PLC year to 30 September 2012 lodged at Companies House show revenues of £3.854 billion, with profit before tax of £317 million and profit after tax of £255 million; the evidence before me shows use of the easyJet Mark in plain text and black and white in numerous press and other publications and Mr Anderson’s evidence was that advertising was often also carried out in black and white for technical or price-related reasons, particularly before widespread use of the internet; Cubico’s witnesses all admitted that the easyJet Mark had a reputation at the relevant date without seeking so to limit it, with one even opining that “everyone had heard of easyJet” back in 2013 when they were setting up the Cubico business under the new ‘Easy Bathrooms’ trading name. Although not all of the revenue can be attributed to UK customers, nonetheless I have no doubt that the easyJet Mark had a highly enhanced distinctive character in the UK by 2013 and in 2015, as easyGroup submits. I note merely for interest that in W3 v easyGroup, the Court found that the easyJet Mark had acquired an enhanced distinctive character in relation to passenger airline services by 15 August 2000.[82]I am also satisfied that both the reputation and the enhanced distinctive character of the easyJet Mark in 2013 and 2015 extended across the specification in Class 39 and also across that of Class 42, to the provision of food and drink; catering; consultancy and advice relating to travel services. The enhanced distinctive character of a trade mark, and its enhanced strength to act as an indicator of origin, extends, in my judgment, to all the goods and services that are provided under that mark. Although I do not have specific evidence before me about catering services and travel advice provided under the easyJet Mark I do not consider that I need it in this case. I take judicial notice of the fact that such services are part and parcel of the transportation of passengers and travellers by air. The reputation and distinctive character of the easyJet Mark attaches to all such services, in my judgment.

easyHotel

[83]Cubico has also provided a limited admission that as of 2013 easyGroup had a reputation in the UK in the easyHotel Mark across the specified services for which it is registered in Class 42 (temporary accommodation; providing hotel accommodation; reservation services for hotel accommodation; computerised hotel reservation services; room hire services; reservation services) when used in accordance with the text depicted in Cooper Black font and the use of orange pantone 021c.[84]Once again, the easyHotel Mark is a word mark, not a device mark formed of a combination of elements including font and colour. Mr Anderson has provided revenue figures by year from 2010 to 2023 (excluding 2010) and the 2013 revenue is c.£2.64 million. For the year ending September 2015 this had risen to a turnover of £5.5 million.[85]Only some of those sales are attributable to hotel rooms in the UK as easyHotel is a chain of hotels operating in the UK and elsewhere in Europe. I cannot quite reconcile easyGroup’s evidence in Annex 1 to the Particulars of Claim which suggests in 2013 there were 2 hotels in the UK and 7 outside the UK with the Director’s Statement in the accounts for that year, visible on Companies House, which states there were 21 properties on the easyHotel system. Similarly the evidence states in 2015 there were 10 hotels in the UK and 8 elsewhere, but the Director’s Statement in the accounts for 2015 states there were again 21 properties on the easyHotel system. It may be that not all of those properties were open. Mr Thompson of easyHotel was not asked about this but he was also not involved in the company at this time. In the absence of more precise evidence or any submissions on the point, I infer that only a minority of the 2013 sales, between 20-25%, relate to UK trading but half or more of the 2015 sales relate to UK trading.[86]The evidence of marketing spend provided by easyGroup in Annex 1 to the Particulars of Claim is not of assistance in relation to this issue as figures have only been provided from 2016.[87]Doing the best I can, I am satisfied on the balance of probabilities that easyGroup had a reputation in the UK in the easyHotel Mark at the relevant dates across the specified services in class 42. However easyGroup has not satisfied me that the easyHotel Mark had enhanced distinctiveness arising from the use made of it in the UK by September 2013 or by mid-2015, and Mr Muir Wood in closing submissions confined them to asking me to find that it had a substantial reputation at the relevant dates. I do so.

easylife Mark

[88]Mr Chrysostomou’s evidence is that he has been involved with easylife since 2000. He described it as one of the UK’s largest catalogue retailers and distributors of products for the home and garden. He explained that it produced catalogues ranging from 16-100 pages, and different paper sizes, for(i) insertion into national and local newspapers and magazines; and(ii) direct mailing to customers. Customers order from them either by post (by using a form at the back of the catalogue), by telephone, or by a website which is now hosted at the domain easylife.com. His evidence is that by 2010/2011 easylife was distributing about 150 million catalogues inserted into newspapers and magazines, and 4-5 million more by post.[89]Mr Chrysostomou also described how easylife subsidises the cost of those catalogues and the distribution costs by accepting third party inserts for insertion into the catalogues themselves, for example from charities or businesses. He said that there were usually five or six such third party inserts per catalogue since the practice started in 2005, and between 2005 to 2014 easylife distributed 99 million such inserts in its own catalogues, contributing £9 million to easylife’s turnover.[90]His evidence is that easylife’s revenue in 2013 was c.£14.9 million from 36 million catalogues, and in 2015 it was c.£19.2 million from 52 million catalogues. None of this evidence was challenged in cross-examination.[91]The specification of the easylife Mark in Class 35 is set out in Annex 1.[92]The easylife business has been carried out by use of a number of variants relied on by easyGroup. Those are the variants which the Court of Appeal held, in easyGroup v easyFundraising Ltd [2025] EWCA Civ 1000 by its finding at [71], were use of the easylife Mark as registered: i) (the “Basic Variant”); ii) (the “Everyday Variant”); iii) (the “Lifestyle Variant”), including all colour variations thereof including but not limited to: , , , and ; and iv) ‘EASYLIFE’ (the “Text Variant”), including all forms of capitalisation thereof.[93]easyGroup relies in this claim on evidence of use of the Variants, being the Basic Variant, the Lifestyle Variant, the Text Variant and (the “Updated Variant”), including all colour variations thereof, to support the reputation and goodwill of the easylife Mark.[94]Cubico denies that these are variants, but this is a matter of law that has been determined by the Court of Appeal by assessing all the variants except the Updated Variant against the easylife Mark as registered. It is not clear to me whether I could, or why I would, come to a different conclusion and Cubico has not really addressed this point in submissions. The Updated Variant post-dates the relevant dates and so I make no finding in relation to that.[95]I am satisfied on the evidence before me including the scale and length of time of operation of easylife’s business under the easylife Mark and certain of the variants, and the sales achieved, that by September 2013 and at mid-2015 the easylife Mark had a reputation for the services contained in the specification in Class 35 and Class 39 (save for “the bringing together, for the benefit of others, of a variety of goods, through a television shopping channel, enabling customers to conveniently view and purchase those goods by means of telecommunications”, as I have seen and heard no evidence that easylife ever traded through a television shopping channel, and “the bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and purchase those goods in a wholesale outlet”, as I have seen and heard no evidence that easylife enabled purchase of goods in a wholesale outlet, no doubt because easyGroup was not relying on those parts of the former specification for the easylife Mark as part of its case). I am satisfied that the third party insert part of the business falls within advertising services and promotion services, and that the catalogues and website of easylife enable customers to conveniently view and purchase a variety of goods from a general merchandise catalogue/internet site by post, telecommunications and internet. I am also satisfied on the evidence that it was and is operating services across the class 39 specification.[96]Again, Mr Muir Wood did not make submissions about enhanced distinctiveness of this mark in closing. I find a high degree of enhanced distinctiveness in the UK across those services arising from its use in trade in the UK.

easy Windsurfing Mark

[97]Mr Mosley’s evidence is that he does not know when a sign similar to the easy Windsurfing Mark was first used by easyCleaning, but he has exhibited the Community Trade Mark registration for that sign which was filed in June 2002 and was registered on 6 March 2006 in, inter alia, class 3, household cleaning preparations, in the previous name of the company, Jeyes Limited. It differs from the easy Windsurfing Mark in that it has a capital letter “E” at the start of the word ‘easy’. His evidence is that when he and his business partner acquired the company in mid 2017, it had a developed “Easy” product line which was sold under that sign, and it was only after easyCleaning assigned the rights that it had accrued in relation to “easy” (including historic rights) and easyGroup licensed them back to easyCleaning on an exclusive basis for 50 years, that the first letter of the sign was changed from a capital letter to a lower-case letter ”e”.[98]Mr Mosley is not able to provide sales figures by value for products sold under the easy Windsurfing Mark before he acquired easyCleaning. However he provides evidence at paragraph 25 of his witness statement of the unit sales figures of what he describes as “Easy” branded products, and by which I understand he confirmed in cross-examination that he meant products under the easy Windsurfing Mark, for the years 2012 – 2013, 2013 and 2014 and 2014-2015 are c.30 million, 27 million and 23.6 million units. That evidence was not challenged. I am satisfied that the easy Windsurfing Mark had a reputation in its specification at the relevant dates. In closing submissions Mr Muir Wood for easyGroup confined himself to seeking a finding of substantial reputation and goodwill, and did not address enhanced distinctiveness.

easyGroup Mark

[99]Annex 1 to the Particulars of Claim states that the first use of the easyGroup brand was in 2000 but it only provides annual revenue figures from 2014. Again, I do not understand why this is when there is no dispute that the first relevant date is 2013. I have had to consult the accounts on Companies House to find that the turnover in 2013 was £12.1 million. It was £13.0 million in 2015. As previously stated, easyGroup was created to hold the intellectual property of the various easy brands and license it to the operators of those brands. Mr Muir Wood in closing accepts that use of the easyGroup Mark is not as extensive as, say, easyJet and acknowledges that a lot of its turnover comes from the licence from easyJet, but I have seen evidence showing that it has at least 100 licensees which contribute to its income. He asks me to find that it has a substantial reputation under its particular relevant public, i.e. those who are interested in the services it offers, including licensees and potential licensees. He did not make submissions seeking a finding of enhanced distinctiveness. I am satisfied on the evidence before me that it did have a reputation at the relevant dates across its specification. Issue 4 – Did the easy Family of Marks exist at the relevant date(s) for assessing infringement?[100]I remind myself that the family that easyGroup relies on is made up of easyJet, easyGroup, easyHotel, easyBus, easyCar and easyMoney. Cubico has made limited admissions in relation to easyJet, easyGroup and easyHotel which I have already discussed.[101]The earliest relevant date is 2013. Cubico submits that easyGroup has only adduced evidence that the first three of the family it relies on existed and was trading at that time, and that it has had no evidence at all about easyBus, easyCar and easyMoney.[102]However, in relation to easyMoney, Mr Anderson provides figures for turnover extracted from accounts at Companies House. That shows turnover of £18,000 each year from 2010 to 2014, and £28,000 in 2015. Mr Anderson was not challenged about these figures in cross-examination. I accept that there was trade under the easyMoney sign at the relevant dates to the extent evidenced.[103]Similarly, in Annex 1 to the Particulars of Claim easyGroup has evidenced that easyBus was first used in 2004, and provides turnover figures from 2009 until 2017. That provides that turnover was £8.49m in 2013 and £8.83 million in 2015. It is not clear where this information comes from and as Ms McFarland submits, she was unable to challenge it as none of the witnesses put forward for easyGroup were able to speak to it. This is often a problem in IPEC where the number of witnesses is tightly constrained to fit in with a 2 day trial timetable. However Annex 1 also provides that until 2010 the routes operated under the easyBus sign were from Milton Keynes to London and services from unspecified locations to Gatwick, Stansted and Luton airports with other routes specified being launched in 2015 or later. It seems to me that there is sufficient evidence to satisfy me that there was trade under the easyBus sign at both relevant dates of 2013 and 2015.[104]In relation to easyCar, the evidence is poorer. Annex 1 states that easyCar was first used in 2003 following a rebrand of easyRentacar (launched in 2000) to easyCar.com, at which time it had 45 physical rental locations. However it states that in 2004 there was “a shift to acting as an online broker for third party rental companies”. That sounds as though the physical rental locations were reduced or ceased, but I do not know which, and it is silent as to the extent of online broking trade under the easyCar sign. It goes on to state that during 2010 easy car launched a peer-to-peer car rental services for the rental of privately owned vehicles from other individuals. It does not provide any evidence about how long that lasted, merely stating that “easyCar is now a rental car booking website which allows customers to book vehicle hire… online”. This evidence does not assist me very much in my assessment of whether and to what extent there was trade under the easyCar brand in 2013 as it is really silent about the trade from 2010 to today, and only provides quantifiable figures for bookings for the periods from March – November 2000 and then from 2018 to 2020. The revenue figures provided only start in 2015 (the table appearing to show zero turnover in 2014, or at least the entry for that year is blank) with turnover of £3.07m, and the end in 2019 with turnover of £2m. The oddly piecemeal nature of this evidence is difficult to understand.[105]Mr Anderson’s evidence is that he was engaged by easyCar between December 2013 and May 2014 as an external consultant, but he says nothing more about it in his witness statement, and he does not provide any financial information for easyCar in the way he has done for easyHotel and easyMoney. On balance, easyGroup has failed to satisfy me that there was trade under the easyCar sign in 2013 or that there was any significant reputation attaching to the easyCar sign resulting from its earlier activities at that relevant date. In relation to the second relevant date of mid-2015, it appears there was some trade for the year ending 2015, having apparently been none in 2014. On balance, I accept there was likely use of the easyCar sign by mid-2015.[106]However, I accept Mr Anderson’s evidence to the Court, and contained in the easy History book which he compiled and edited through numerous hard copy and video editions, and supported by the evidence of Mr Chrysostomou, Mr Thompson and Mr Mosley, of the importance of the presentation of easy brand marks and signs to the public in accordance with the easy Brand Guidelines except, as Mr Mosley told the Court and Mr Anderson agreed, where exceptionally there were pragmatic and practical reasons for departing from them. The easy Brand Guidelines require use of Cooper Black font; ‘easy’ being in all lower case with the suffix word beginning with an upper case letter and otherwise being in lower case; the suffix word being attached to ‘easy’; and use of the orange pantone 021c. In my judgment those elements of the required Brand Guidelines are key factors in the relevant public’s perception of the easy brands and any easy family of marks.[107]However, easyGroup does not rely on those key factors as being part of the easy Family of Marks for which it contends. At para 6 of the particulars of claim its pleaded case is that because of the use made of the “easy Brands”, the average consumer has been educated to perceive a business operating under an easy Brand as being associated with easyGroup. “easy Brands” is defined in para three of the particulars of claim as “brands… which trade under names comprising the word ‘easy’ followed by a word or other indication appropriate to their field of operation or characteristic”, without reference to any of the key elements of the easy Brand Guidelines set out above. In other words, as was argued before His Honour Judge Hacon in easyGroup v easyFeet, the assertion in this case is for public recognition of an easy Family of Marks by reference only to the common feature of the word ‘easy’ with a suffix word, without the need for any of the key factors insisted upon in the easy Brand Guidelines.[108]As before HHJ Hacon, easyGroup has not in this case led any evidence, bar pleadings and assertion, to support the contention that the average consumer would recognise the word ‘easy’, which is an ordinary English word descriptive of something simple, with any other second word or indication appropriate to their field of operation or characteristic, as being associated with easyGroup. In fact as I have stated, its evidence in the form of the easyHistory and from their witnesses points the other way. It seeks to rely on some previously decided cases, including easyGroup Ltd v Easyway SBH [2021] EWHC 2007 (IPEC) to support its argument, but each case turns on its own pleadings, evidence and facts and I have to consider those in this case.[109]Ms McFarland’s primary position for Cubico is that the Court should find that easyGroup has failed to satisfy me of the easy Family of Marks as pleaded in this case, and her secondary submission is that if I find there is an easy Family of Marks, I should also find that it only enhanced the distinctiveness of the Registered Marks and Reputation Marks when they were used with in accordance with the easy Brand Guidelines, not as plain word marks.[110]I am not required to find if any such thing as an easy family of marks exists, I am only concerned with whether easyGroup has satisfied me that the specific easy Family of Marks pleaded in this case exists. As it is pleaded only with reference to the word ‘easy’ and a suffix, and because of the lack of evidence to support that pleading, it has not. Issue 5 – If the answer to Issue 4 is yes, what was the effect of the easy Family of Marks on(a) the reputation of each of the Registered Marks and(b) the enhanced distinctive character of each of the Reputation Marks?[111]This issue falls away given my finding on Issue 4. Cubico’s Trade Mark Registrations Issue 10 – When did Cubico(i) commence and(ii) cease to make use in the UK of Cubico’s Earlier Mark?

Cubico’s Trade Mark Registrations

[112]Mr Browett’s evidence was that when Cubico began trading under the name “Easy Bathrooms” it did so using the early device, which he and Mr Reed identified as that for which registration was later obtained as Cubico’s Earlier Mark. Ms McFarland in closing submits that the earliest use of the mark itself which has been evidenced on images obtained from the wayback machine is 10 September 2015. I accept that as the earliest use of Cubico’s Earlier Mark.[113]Mr Reed said that Cubico’s Earlier Mark continued to be used even after the rebranding in 2015, on the fascia of the store in Wakefield, until December 2020 when that store was vacated. I have seen images of the store showing it with a sign similar to Cubico’s Earlier Mark from September 2014 (albeit that was before the mark was registered) to September 2020. However, in cross-examination Mr Reed agreed that the colouring used on the Wakefield store fascia was slightly different to that of the sign which was registered as Cubico’s Early Mark. Cubico submits that it is minor variation which is immaterial to the function of the trade mark. easyGroup denies that it is use of a variation of Cubico’s Earlier Mark because the differences are material.[114]The Court of Appeal provided guidance on the treatment of variant forms in infringement and passing off cases in Athleta (ITM) Inc. v Sports Group Denmark A/S [2025] EWCA Civ 1584. Key principles are that the Court must first identify what are the differences between the mark as used and the mark as registered, and secondly ask whether they alter the distinctive character of the mark as registered. If there is alteration or omission of elements which are not distinctive, this is not capable of altering the distinctive character of a trade mark (Sony Computer Entertainment Europe Ltd v OHIM (T-690/14) EU:T:2015:950 at [45]), and when a trade mark is composed of word and figurative elements the former are, as a rule, more distinctive than the latter (Sony v OHIM at [49]).[115]In my judgment the font, layout, strapline and design of the sign used on the Wakefield fascia appear to be identical to the mark except that some of the colours used have been changed. The mid-blue elements of Cubico’s Early Mark, being the basin element and the word “bathroom” and the strapline below, appear to be white on the fascia. The water drop and water in the basin are a lighter blue in Cubico’s Early Mark and light grey on the fascia. The background colour of Cubico’s Early Mark is a very dark blue, and it is a mid-blue in the fascia. The sign on the fascia retains the very distinctive (in the context of the overall colour palette) lime-green element of the word “easy” in Cubico’s Early Mark. In my judgment these changes are within the same basic colour palette of Cubico’s Early Mark, and although they do change the distinctive and dominant word “bathroom”, I am not convinced that these fairly subtle colour changes would be noticed by the average consumer with an imperfect recollection of the mark in mind. As such I do not consider that these changes alter the distinctive character of the mark and so do not disturb its function as an indicator of origin.[116]For these reasons I find that a variant of Cubico’s Earlier Mark was used on the fascia of the Wakefield store until December 2020. I am satisfied that was genuine use because I accept the evidence of Cubico’s witnesses that that Wakefield site was functioning as a store until December 2020. Issue 11 – Is Cubico’s Earlier Mark revoked for non-use and if so, from what date?[117]Given my finding on issue 10, and my finding that the relevant period in which Cubico was required to show genuine use of Cubico’s Earlier Mark was from 14 August 2019 to 13 August 2024, the answer to this question is no. Trade Mark Infringement Issue 13 – In relation to which goods or services have the Signs or any of them been used in the UK?[118]I am satisfied on the balance of probabilities that the Signs have been used for the sale of bathroom goods including sanitaryware, bathroom furniture and cabinetry, bathroom accessories, tiling, plumbing, installation accessories and related decoration and for retail and delivery services relating to such goods and bathroom design and installation services. Although, for example, Sign E has been used to sell a specific range of accessible bathroom goods, it is in the context of the website which sells the full range of goods and services set out below, with the tabs for such goods and services visible from the page on which Sign E is used, and in relation to which, no doubt, buyers of an accessible bath may also be potential or actual purchasers. Issue 14 – Are the Signs or any of them similar to the Registered Marks or any of them?[119]What remains of easyGroup’s claim for s.10(2) TMA infringement of the easylife Mark and the easy Windsurfing Mark (the easy Mark having been revoked and invalidated ab initio) is infringement by use of the Signs and s.10(3) infringement in respect of the Reputation Marks by use of the Signs.[120]The relevant comparisons are set out below: Registered Marks The Signs EASYJET easyGroup EASYGROUP easyHotel EASY BATHROOMS/ EASYBATHROOMS EASY LIVING/EASYLIVING EASY BATH/EASYBATH EASY[121]There is a visual and aural similarity between the Signs and the Registered Marks because they all feature the word ‘easy’. There is some conceptual similarity between them because that common element ‘easy’ is a usual and common English word, meaning simple. However the Signs must be considered as a whole.[122]easyGroup submits that the average consumer will pay more emphasis on the ‘easy’ element of each of the Registered Marks and the Signs because: i) reading left to right, ‘easy’ is at the start of each, and it is well-recognised that consumers pay more attention to the beginning of words. That may be so but as is easyGroup’s own case, the second word or conjoined suffix (where one exists) is the one which is allusive to the goods and services provided under the mark or sign and I consider that the average consumer will consider this to be the dominant element, and not the word ‘easy’. That is supported by way that the easyHotel Mark and easyGroup Marks capitalise the second word and the easylife Mark places the tick device above the second word, in ways which visually emphasise its importance, in my judgment. ii) ‘BATHROOMS’, ‘BATHROOM’, ‘LIVING’ AND ‘BATH’ are all allusive to the goods and services at issue and a shop in which they might be bought, so are liable to be discounted in significance. I do not accept this submission for the reasons given above.[123]Further submissions were made with reference to the easy Family of Marks, but I have not found that to exist as pleaded.[124]In relation to Signs A and C I consider that the distinctive character of those Signs lies in the combination of the two words ‘easy’ and ‘bathrooms’, being together the dominant element of those Signs albeit the average user placing more emphasis on ‘bathrooms’ for the reason I have given, and the highly distinctive swirl device which I find is the second most visually important element. Sign B adds the words “Easy Living” to Sign A which is another distinctive element and visually obvious. The strapline ‘simply luxurious’ in Signs A, B and C provides some information and context to the dominant element and so is of some importance conceptually but itself is visually fairly unobtrusive and makes only a fairly minimal contribution to distinctive character of Signs A and B. The black square providing the background to the dominant elements in Sign C adds little distinctiveness to Sign B, in my judgment and may not even be remembered in the imperfect recollection of the average consumer. If it is not trivial it is of low importance. To the extent that easyGroup relies on the Signs comprising conjoined words in e.g domain names and social media tags, I consider that the average consumer is able to understand that there are technical and availability limitations to the way that brand names can be presented on such tags and addresses, as Cubico’s witnesses explained, such that they may not exactly represent the trading style of the company using them.[125]Taking Signs A, B and C together, I consider there is a low degree of visual similarity with the Registered Marks which reposes only in the common element ‘easy’, with the other elements of the Signs (particularly the stylisation, the swirl and to a lesser extent the strapline in Signs A and C, and the “Easy Living” element of Sign B) and the other elements of the Registered Marks (including the use of distinctive stylisation and devices (for the easylife Mark, and the easy Windsurfing Mark) and capitalisation of conjoined suffixed words (for the easyJet Mark, the easyGroup Mark, the easylife Mark and the easyHotel Mark) significantly decreasing the visual similarity provided by that common element. In these Signs, the dominant element ‘easy bathrooms’ is represented as two separate words and not concatenated together as in the Registered Marks (except the easy Windsurfing Mark); all text is represented in all capital letters unlike any of the Registered Marks; there is no similarity of font of these Signs and those of the Registered Marks which are devices; and there is nothing similar to the swirl device in any of the Registered Marks.[126]Although there is a low degree of aural similarity between the Signs A and C which would be pronounced “easy bathrooms… simply luxurious” and Sign B (“easy bathrooms… simply luxurious… easy living”) on the one hand and the easy Windsurfing Mark which would be pronounced “easy” on the other, there is in my judgment a lower degree of aural similarity between those signs and the easyJet Mark, the easyGroup Mark, the easylife Mark and the easyHotel Mark which would be pronounced as written.[127]Conceptually, I consider there is a low degree of conceptual similarity between Signs A, B and C and the Registered Marks residing only in the common element of ‘easy’, as the suffixes (Jet, Group, life, Hotel) and the windsurfing device are, in my judgment, dominant and important elements, respectively, of those Marks and conceptually dissimilar to bathrooms/baths. In my judgment the average consumer would consider those Registered Marks as a whole, and give conceptual importance to the things communicated as being easy, namely Jet, Group, life, Hotel, when having ‘easy bathrooms’ in mind.[128]Overall I consider there is a medium - low degree of similarity between those Signs and the easy Windsurfing Mark and Sign B and the easylife Mark (because of the additional element of “EASY LIVING” in Sign B, albeit in a non-dominant element) and a low degree of similarity between those Signs and the other Registered Marks.[129]In relation to Sign D, for ‘EASY BATHROOMS’/’EASYBATHROOMS’ and Sign F for ‘EASY BATH/EASYBATH’, I consider that there is a medium – low level of visual similarity to the Registered Marks, arising out of the common element ‘easy’. It is not higher, in my judgment, because of the importance that the average consumer will give to the secondary word ‘Bathrooms’ or ‘Bath’ in the Sign kept imperfectly in mind as previously explained, and the fact that it does not appear in the Registered Marks where a quite different secondary word is used instead (except for easy Windsurfing, where the average consumer will consider the windsurfing device as an important visual distinction, in my judgment). The aural and conceptual assessments are the same as for Signs A and C for the same reasons. Overall I find there is a medium– low degree of similarity between Sign D and Sign F and the Registered Marks.[130]For Sign E, I consider that the distinctive character in the mark lies in the combination of words ‘EASY’ and ‘LIVING’, being together the dominant element of those Signs with more emphasis on living and bath for the same reasons given above. I consider that it has a medium - low degree of visual similarity to all of the Registered Marks save for the easylife Mark, which is found only in the common element easy, for similar reasons to those given in relation to Sign D. It has a medium degree of visual similarity to the easylife Mark which shares not only the common element ‘EASY’ but also the first two letters ‘LI’ of the suffix or second word. However Sign E does not share the stylisation of the easylife Mark, whether in the distinctive font, the tick device or the strapline ‘lifestyle solutions’ and these are significant visual distinctions in my judgment. Aurally, the similarity is in the word ‘EASY’ but the mark as a whole has in my judgment a low degree of aural similarity to the Registered Marks. I also find that it has a low degree of conceptual similarity to the Registered Marks for the reasons previously given, save for the easylife Mark, to which I consider it has a medium-high degree of conceptual similarity because of the conceptual similarity of the words ‘LIVING’ on the one hand and ‘LIFE’ on the other, plus the non-dominant element ‘lifestyle solutions’ in the easylife Mark. Overall I consider Sign E has a medium degree of similarity to the easylife Mark and a low degree of similarity to the other Reputation Marks.[131]For Sign G, I consider that it has a medium-high degree of visual similarity to those of the Registered Marks which are word marks, which derives from the common element ‘EASY’. The fact that it does not contain a suffix or second word is a point of distinction but it does not benefit from the added visual distinctiveness that such a suffix or second word can provide, as seen in the other Signs. It has only a medium degree of visual similarity with the other Registered Marks, because of the absence of the other elements of the Registered Marks (including the use of distinctive stylisation and devices for the easylife Mark, and the easy Windsurfing Mark). Aurally it has identity with the easy Windsurfing Mark and a medium-low similarity with the other Registered Marks which reposes in the common element ‘EASY’, but the suffix words are a very important aural distinction in my judgment. Conceptually it has a medium – high level of similarity with the easy Windsurfing Mark, but the windsurfer device is important conceptually, and a point of distinction, by bringing a windsurfer to the average consumer’s mind, in my judgment. It has a med - low conceptual similarity with the Registered Marks where, as I have said previously, the average consumer would consider them as a whole and give conceptual importance to the things communicated by the suffix or second word as being easy. Overall I consider that Sign G is of med – high similarity to the easy Windsurfing Mark and of medium similarity to the other Registered Marks. Issue 15 – Are the goods and/or services in relation to which Cubico has used the Signs or any of them identical or similar to the goods and services in the specification for each of the Registered Marks set out in Schedule 1 to this judgment?[132]In easyGroup v Premier Inn Hotels, Lance Armstrong KC set out at [14], in a citation from Arnold LJ’s judgment in Extreme Networks Ltd v Extreme E Ltd [2024] EWCA Civ 1386, which includes at [13] the factors which a Court should take into account in assessing the similarity of goods or services, originally taken from British Sugar plc v James Robertson & Sons Ltd [1996] RPC 281 at 296-297. Those include the uses, users and physical nature of the respective goods and services, and the extent to which the respective goods or services are in competition with each other or complementary. Extreme Networks is also authority for the proposition relied on by easyGroup that goods or services can be identical or similar to goods or services falling within a more general category in a specification (at [17]). As Arnold LJ reminds us at [19], it is “…important to ensure that the ultimate question is kept in view: are these goods or services sufficiently similar to give rise to a likelihood of confusion? A finding that the goods or services are not similar at all implies that there is no possibility of confusion no matter how strongly the other factors in the assessment of likelihood of confusion support the existence of a likelihood of confusion.”[133]In closing, easyGroup limited its submissions to two: i) that by using the Signs for, inter alia, retail and delivery services relating to the bathroom goods that I have found Cubico sells, Cubico has used the Signs in relation to identical or alternatively similar services to that for which the easylife Mark is registered, specifically “the bringing together for the benefit of others, of a variety of goods, enabling customers to conveniently view and purchase those goods” either “from a general merchandise catalogue by mail order or by means of telecommunications” or “from a general merchandise internet web site”; and ii) that by selling a third party product of a manufacturer called Instamac called “Ultra Tile ProClean Easy Clean Tile Protector” (“Ultra Tile”) Cubico has used the Signs to sell identical or alternatively similar goods to that for which the easy Windsurfing Mark is registered, namely “household cleaning preparations”.[134]It made no submission that Cubico has provided services which are identical or similar to the services for which the easy Mark is registered, and in doing so abandoned its case for s.10(2) TMA infringement of the easy Mark (which in any event has since been revoked and invalidated).[135]In relation to the easylife Mark, Cubico submits that it has not provided services through a general merchandise catalogue or general merchandise internet website, as it is not a general merchandiser selling a wide variety of all types of goods but a specialist bathroom retailer. I accept easyGroup’s submission that the guidance in Extreme Networks that goods and services that are included in a more general category may be deemed similar or identical to them.[136]easyGroup relies on similarity or identity of various goods sold by the parties under each of the easylife Mark and the Signs, i.e. the sale by Cubico of what easyGroup says are similar or identical goods to those in the easylife catalogue. It submits that a plastic soap dish sold by easylife for £7.99 is an identical product to that sold by Cubico, which also sells soap dishes. Mr Waddington denied it, saying “No, that is plastic. It is nothing like our product. We sell soap dishes for up to maybe £100 retail. They are nothing like this.” easyGroup submits that a corner shelf unit, with a spring-loaded steel upright and plastic shelves sold by easylife for £19.99, and another similar shower storage unit are identical or similar to shower baskets sold by Cubico, but again Mr Waddington denied it. He said “We sell shower baskets, yes, but they are made from brass and chrome or nickel plated. They are nothing like this. We sell single caddy, double caddy shower baskets but nothing like this which sits on the bath. Ours screw to the wall and are made of pure brass.”[137]I accept Mr Waddington’s evidence that the physical nature of the respective goods in this case is quite different, but the soap dishes have identical uses and users and the bathroom storage has very similar uses and identical users, in my judgment. Both categories of goods also compete with each other, in my judgment, although the goods are each aimed and different sectors of the market for bathroom accessories: the easylife goods at the bottom, cheaper end of the market and the Cubico goods at the quality, higher-end of the market. Accordingly I am satisfied that they are similar goods.[138]However, easyGroup appears to be able to point only to three similar goods in a very large catalogue of goods. In my judgment that supports Cubico’s submission that its goods and services are highly specialist. For that reason I find that the services are similar and not identical.[139]In relation to the easy Windsurfing Mark, there is no dispute that easyCleaning sells a range of home cleaning products for, inter alia, the bathroom under the easy Windsurfing Mark and Mr Mosley gave evidence on this point which I accept.[140]Cubico relies on the product information/technical data sheet for the Ultra Tile product, and the evidence of Mr Waddington, to support its submission that the Ultra Tile product is a professional product which is used to protect the surface of tiles following their installation but before grouting, to avoid the grout staining the tile. Accordingly, it submits, it is not a household cleaning preparation at all. Mr Waddington’s oral evidence in cross-examination is that it was a professional product and not a consumer product, and he was not challenged on that. The submission of easyGroup in closing that it might be used by lay people doing DIY installation was not put to Mr Waddington so I could not hear his response to that.[141]I accept Mr Waddington’s evidence that Ultra Tile is a product aimed at professionals installing tiles and not a ‘household’ product. The fact that it may be purchased by a non-professional who wishes to use it for tile installation does not, in my view, alter the fact that it is not a product which has any real function in a household as opposed to on a building site or bathroom renovation project. I am also satisfied that it is not a cleaning product at all, but a protective product which, once it has carried out its function of protecting the tile from grout staining, is easily washed off. That is why it is referred to as ‘easy clean’. For those reasons I accept Cubico’s submission that it is not a household cleaning product. I do not consider that there is any evidence that Cubico uses the Signs or any of them to sell goods within the specification of the easy Windsurfing Mark. Issue 16 – Is there a likelihood of confusion in the minds of the relevant public in the UK with the Registered Marks resulting from Cubico’s use of the Signs?[142]As I have found that s.10(2) infringement has been abandoned in relation to the easy Mark, and there is no similarity between goods sold under the Signs and the goods sold within the specification of the easy Windsurfing Mark such that there is no possibility of confusion in respect of that mark, I will only consider whether there is a likelihood of confusion of the Signs with the easylife Mark for which s.10(2) TMA infringement remains a possibility.[143]I have assessed the similarities of these Signs with the easylife Mark. I found a low degree of similarity with Signs A and C, a medium – low degree of similarity with Sign D and F and a medium degree of similarity with Signs E and G. I have found a low degree of similarity of services. I have not found that the easylife Mark has an enhanced distinctive character because of the use that has been made of it across a number of variants.[144]easyGroup has not formally dropped its pleaded case of direct confusion, but in its skeleton for trial and submissions at trial submits that its primary case is one of indirect confusion.[145]In Match Group LLP v Muzmatch Ltd [2023] EWCA Civ 454, [2023] FSR 18 at [39] the Court held that absence of evidence of actual confusion is not necessarily fatal to a claim under s.10(2) of the Act, but the longer the use complained of has gone on in parallel with use of the trade mark without such evidence emerging, the more significant it is. The Court should consider what opportunity there has been for confusion both to occur and be detected when considering the weight to be attached to this factor.[146]easyGroup submits that in cases of indirect confusion, there would be no need for consumers to act upon their mistakes such that neither easyGroup nor Cubico would become aware of it: a contented customer would have no need to contact either party and a discontented customer would naturally contact Cubico despite assuming it and the Signs to be part of the easy Family of Marks, and there would be no need for the wrongful confusion to come to light. However I have not found that there is an easy Family of Marks as pleaded.[147]I remind myself of the efforts undertaken by Mr Reed to interrogate Cubico’s emails, the Meta social media messaging, and Cubico’s Trustpilot reviews for the previous 12+ years of trading, and his evidence, and that of Mr Waddington, that he found no evidence of confusion and they knew of no evidence of confusion between the Signs and easyGroup’s marks. In my judgment the fact that there has been parallel trade since Cubico began trading under ‘EASY BATHROOMS’ in 2013 without any evidence at all of direct or indirect confusion arising with any of the Registered Marks, let alone the easylife Mark, despite those searches, is significant. I accept Mr Reed’s evidence that if there was any material confusion he would have expected his searches to uncover it.[148]It seems to me that there was ample opportunity for confusion between the Signs and the easylife Mark to occur and be detected, whether that was reported or discovered by emails from customers, comments or complaints in store, on social media or by way of leaving reviews on review sites. The only thing which arose was correspondence from a consumer who was not confused but felt he should report Cubico’s trading name to easyGroup. As Ms McFarland submits, if easyGroup had been aware of any such confusion they would surely have disclosed or evidenced it.[149]Taking all of the relevant factors into account, I do not consider that there is a risk that the relevant public might believe that the services of Cubico come from easylife or economically-linked undertakings including easyGroup. Accordingly the s.10(2) infringement claims in relation to the Signs fail. Issue 17 – Does the relevant public when confronted with the Signs make a link with any of the Registered Marks?[150]I remind myself that the s.10(3) infringement claim is brought only in respect of Services. What remains of easyGroup’s s.10(3) infringement case following the findings that I have made is that because I have found that the Signs are similar to Reputation Marks including the easylife Mark, and the Services are similar to the services for which the easylife Mark has a reputation, the question remains whether that will establish a link between the Signs or any of them and the easylife Mark in the mind of the average consumer, even though the Signs and the easylife Mark do not confuse them.[151]easyGroup submits that the burden is not high, and relies on the case of Intra-Presse SAS v OHIM (C-581/13 P) EU:C:2014:2387 in which GOLDENBALLS was held to be sufficiently similar to BALLON D’OR to create a link because the imperfect conceptual similarity was sufficient even in the absence of any aural or visual similarity. It also notes that the General Court pointed out in Copal Tree Brands, Inc v EUIPO (T-572/21) EU:T:2022:594 at [48] that ‘proximity’ between goods and services for a finding of a link is not the same concept as ‘similarity’ under the equivalent of s.10(2) TMA: a simple connection between the goods and services is enough.[152]It submits that a link was raised in the mind of Cubico’s investor, who raised concerns about similarity between “Easy Bathrooms” and easyGroup in 2015, but he was not the average consumer with whom I am concerned.[153]I remind myself again of the findings I have made about the similarity between the Signs and the easylife Mark; the low degree of similarity between the services covered by the easylife Mark and the Services; and that I have found the easylife Mark to have a reputation acquired from the use to which it was put as well as its inherent distinctiveness, but not one that benefits from enhanced distinctiveness arising from use. I have considered the scale of the trade and reputation of Cubico’s business under the Signs, and the evidence of Cubico’s witnesses about the very limited use to which Signs E and G, in particular, were put, which I accept. I consider whether the relevant public might understand that easylife has extended its activities into the specialist field of bathroom supply. I remind myself not to approach this exercise too narrowly. Nonetheless I am not satisfied that Signs or any of them would, for the average consumer, call the easylife Mark to mind. Issue 18 – In using the Signs or any of them, has Cubico taken unfair advantage of the distinctive character or repute of any of the Registered Marks in the United Kingdom?[154]Given my finding on Issue 17, this falls away. Issue 19 – In using the Signs or any of them, has Cubico caused detriment to the distinctive character of any of the Registered Marks in the UK?[155]Given my finding on Issue 17, this falls away. Issue 12 – Are Cubico’s Earlier Mark and Cubico’s Later Marks invalid on the following pleaded grounds? (a). In respect of Cubico’s Earlier Mark and the Cubico Series of Marks, is there an earlier trade mark in relation to which the conditions set out in s.5(2)(b) TMA apply? (b). Is there is an earlier trade mark in relation to which the conditions set out in s.5(3) TMA apply? (c). Is there is an earlier right in relation to which the condition set out in section 5(4)(a) TMA is satisfied?[156]easyGroup submits that the law on invalidity mirrors the law under sections 10(2)(b) and 10(3) TMA and passing off, and since each of Cubico’s Earlier Mark and the Cubico Series of Marks is effectively for the sign ‘EASY BATHROOMS’, if use of that sign is an infringement or amounts to passing off, each of the trade mark registrations must be invalid. It acknowledges that the relevant dates for assessing invalidity are different to those assessing infringement, but contends that its evidence of reputation and goodwill is sufficient at each of those dates.[157]I accept that submission, which in my judgment only relates to Signs A-D which are the signs incorporating the words ‘EASY BATHROOMS’, and not to Signs E, F and G which do not.[158]Given that I have dismissed the infringement and passing off claims in respect of Signs A-D, the answer to each of these questions is ‘no’. Issue 23 – Does Cubico benefit from the following defences in relation to its use of any of the Signs, and if so, in relation to which?[159]Given that I have not found that Cubico is liable for s.10(2) or s.10(3) TMA infringement in respect of use of the Signs, it is not necessary to go on to consider the pleaded defences. H. SUMMARY[160]easyGroup has not satisfied the Court that the pleaded easy Family of Marks existed at the relevant dates for assessing infringement.[161]The claims for s.10(2) TMA infringement, s.10(3) infringement and passing off are dismissed.[162]The claim for revocation of Cubico’s Earlier Mark for non-use is dismissed.[163]The claims that Cubico’s Earlier Mark and Cubico’s Later Marks are and always have been invalidly registered are dismissed. Schedule 1 – Specification of the Registered Marks175. The easylife Mark is marked-up to show the services for which it was registered at the date of the Claim Form and the services for which it is now registered, following the amendment of the specification, indicating those removed and those added. Marks Goods or services EASYJET transportation of passengers and travellers by air; airline services easyGroup EASYGROUP dissemination of advertising; the commercial administration and management of the licensing of goods and services, including the administration and management of brand licences; the provision of general support, marketing, advertising, administration and management services to licensees of goods or services advertising services, promotion services, providing advertising and promotional space in printed publications; the bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and purchase those goods from a general merchandise catalogue by mail order or by means of telecommunications; the bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and purchase those goods from a general merchandise internet web site transport, packaging and storage of goods easyHotel temporary accommodation; providing hotel accommodation; reservation services for hotel accommodation; computerised hotel reservation services; room hire services; reservation services for all the aforesaid services household cleaning preparations Schedule 2 – The Issues176. The Defendant’s acts[1]When did the Defendant begin to make use of each of the Signs in the United Kingdom (as defined at paragraph 26 of the Particulars of Claim)?[2]What is/are the relevant date(s) for assessment for trade mark infringement and passing off? The Claimant’s rights[3]At the relevant date(s) of assessment, whether and to what extent each of the Reputation Marks:a. had a reputation in the United Kingdom and, if so, for which goods and/or services; and/orb. had enhanced distinctive character in the United Kingdom and, if so, for which goods and/or services?[4]Did the easy Family of Marks incorporating some or all of the easy Brands listed at paragraph 8 of the Particulars of Claim exist at the relevant date(s) for assessing infringement?[5]If the answer to 4 is yes, what was the effect of the easy Family of Marks on(a) the reputation of each of the Registered Marks, and(b) the enhanced distinctive character of each of the Reputation Marks?[6]At the relevant date(s) of assessment, was there any protectable goodwill in the United Kingdom attached to the signs in relation to which the following trade marks are registered, and if so, for which goods and/or services:a. easyJet Mark;b. easyGroup Mark;c. easylife Mark;d. easyHotel Mark and/ore. easy Windsurfing Mark.[7]At the relevant date(s) of assessment, was there any protectable goodwill in the United Kingdom attached to the following signs andif so, for which goods and/or services:a. easylife Sign; andb. easy Windsurfing Sign.[8]Is the Claimant the owner of any of the aforesaid goodwill in the United Kingdom? Trade Marks – General[9]Who are the relevant public(s)?

The Defendant’s Trade Mark Registrations

[10]When did the Defendant(i) commence and(ii) cease use of Cubico’s Earlier Mark?[11]Is Cubico’s Earlier Mark revoked for non-use and, if so, from what date?[12]Are Cubico’s Earlier Mark and Cubico’s Later Marks invalid for the reasons set out at paragraph 39 of the Particulars of Claim?

Trade Mark Infringement

[13]In relation to which goods or services have the Signs or any of them been used in the United Kingdom?[14]Are the Signs or any of them similar to the Registered Marks or any of them?[15]Are the goods and/or services in relation to which the Defendant has used the Signs or any of them identical or similar to the goods and services in the specification for each of the Registered Marks set out in Annex 3 to the Amended Particulars of Claim?[16]Is there a likelihood of confusion in the minds of the relevant public in the United Kingdom with the Registered Marks resulting from the Defendant’s use of the Signs?[17]Does the relevant public when confronted with the Signs make a link with any of the Registered Marks?[18]In using the Signs or any of them, has the Defendant taken unfair advantage of the distinctive character or repute of any the Registered Marks in the United Kingdom?[19]In using the Signs or any of them, has the Defendant caused detriment to the distinctive character of any of the Registered Marks in the United Kingdom?[20]In using the Signs or any of them, has the Defendant caused detriment to the repute of any of the Registered Marks in the United Kingdom?[21]Is the Defendant’s use of the Signs without due cause?[22]Does the Defendant’s use of the Signs affect the functions or any of them of the Registered Marks or is it liable to affect the functions or any of them of the Registered Marks?[23]Does the Defendant benefit from the following defences in relation to its use of any of the Signs and, if so, in relation to which Sign(s) do such defences apply:a. a defence of acquiescence under s48 Trade Marks Act 1994 as identified at paragraphs 8.5, 8.6 and 8.7 of the Defenceor generally;b. a defence that the Defendant’s use of its Signs (or any of them) comprises use of “Easy”, being an indication of the intended purpose, kind, quality or other purpose of the goods/services in relation to which such Sign has been used under s11(2)(b) of the Trade Marks Act 1994 as set out at paragraph 8.4 and 8.8 of the Defence;c. a defence that the Defendant’s use of its Signs (or any of them) is in accordance with honest concurrent use as set out at paragraph 8.3 of the Defence;d. a defence that the Defendant’s use of the Signs or any of them comprises use of Cubico’s Earlier Mark or Later Marks, being registered trade marks, and therefore that such use does not infringe the Claimant’s Registered Marks or any of them by virtue of s11(1)of the Trade Marks Act 1994 as set out at paragraph 8.8 of the Defence; and/ore. a defence that the Claimant is estopped from seeking remedies by reason of the matters pleaded at paragraph 9.2 of the Defence.

Passing off

[24]As at the relevant date[s] of assessment, did the use of the Signs or any of them by the Defendant in the United Kingdom constitute a misrepresentation for the purposes of passing off?[25]If the answer to 24 is yes, was such misrepresentation liable to damage any goodwill found to be owned by the Claimant?