easyJet make life difficult for Leicester-based indie band

easyGroup, the parent company of low-cost air carrier, easyJet, was recently involved in a trade mark spat with Leicester-based indie band, Easy Life. It has been reported that a settlement has been reached between the parties, where the band have agreed to change their name.

What happened?

easyGroup was founded in 1998 by Sir Stelios Haji-Ioannou. They own various trade marks with the prefix ‘easy’, including the following:

• “Easylife” (UK trade mark no. UK00003532904) (the “easyLife Mark”), filed in 2020 and registered as of 2022, for retail services connected with a myriad of goods, including CDs, audio-visual equipment, clothing, footwear, headgear, pictures, and paintings.
• “EASYJET” (UK trade mark no. UK00002016785) (the “easyJet Mark”), filed in 1995 and registered as of 1996, for (amongst other things) transportation, travel agency, and tourist services.
• The easyJet airplane livery (UK trade mark no. UK00002253812, depicted below) (the “easyJet Livery Mark”), filed in 2000 and registered as of 2002, for (amongst other things) transportation, travel agency, and tourist services.
• “EASYMUSIC” (UK trade mark no. UK00002325440A) (the “easyMusic Mark”), filed in 2003 and registered as of 2004, for (amongst other things) providing online entertainment information and services.

Earlier in the year, easyGroup commenced trade mark infringement proceedings in the High Court, complaining about Easy Life’s use of the “Easy Life” name, as well as the following poster and t-shirts used in the promotion of the band’s “Life’s a beach” tour:

easyGroup alleged that Easy Life’s mark takes “unfair advantage of, or is detrimental to, the distinctive character or repute” of their easyJet Mark, easyJet Livery Mark, and easyMusic Mark, which were said to have a substantial reputation in the UK. Interestingly, easyGroup did not make a similar claim in relation to their easyLife Mark, which might suggest that their evidence of use or reputation for this relatively newer mark was not as strong.

In simple terms, taking of “unfair advantage” describes a situation where there is unauthorised use of an identical or similar mark to benefit from the power of attraction, reputation, prestige, or other characteristics associated with a well-known mark. “Detrimental” use, in the context of distinctiveness, describes a situation where such unauthorised use weakens the ability of the well-known mark to arouse immediate association, in the public mind, with the goods or services for which it is registered.

easyGroup also alleged that Easy Life’s marks are identical or highly similar to their easyLife Mark, and are being used in relation to highly similar goods and services, such that the public is likely to be confused. 

What would have been the verdict?

Starting first with easyGroup’s easyJet Mark, easyJet Livery Mark, and easyMusic Mark, the court may very well have found them to have been infringed by Easy Life. Although it is doubtful that the public would have thought that Easy Life’s music business originates from or is connected with easyGroup, Easy Life’s mark, especially when used in the manner depicted in their promotional poster, arguably weakens the ability of the easyJet Mark and easyJet Livery Mark to arouse immediate association, in the mind of the public, with the services for which they are registered. 

As for easyGroup’s easyLife Mark, which was only filed in 2020 and registered as of 2022, Easy Life might have been able to establish the defence of prior use on the basis that they have used their name since 2015, depending on the strength of their evidence.

Easy Life could also have exerted pressure on easyGroup by challenging their trade mark registrations: 

• Easy Life could have challenged the validity of easyGroup’s registration for the easyLife Mark on the ground of non-distinctiveness. In order to be registrable, a trade mark must have sufficient distinctiveness, that is, it must be capable of denoting that the goods or services covered originate from a particular source. Arguably, “easy” is not a very distinctive word as it is a word commonly used in everyday language, although easyGroup would likely have argued that the combination of “easy” and “Life” amounts to an ambiguous phrase that is sufficiently distinctive in relation to the registered services. Interestingly, easyGroup previously came up short in a trade mark dispute with ‘EasyRoommate’ where Arnold J found that the trade mark was descriptive and not a valid mark. In coming to this conclusion, Arnold J also clarified that distinctiveness has a very high threshold which “easy” could not necessarily reach on its own. 
• Easy Life could have applied for revocation of any marks registered by easyGroup which have not been used, to heap even more pressure on easyGroup. Under UK law, if a registered mark is not used in the five years since it was registered, or for any uninterrupted period of five years, anyone can apply to revoke its registration. As recently as 27 October 2023, the Court of Appeal in easyGroup Ltd v Nuclei Ltd & Others upheld the revocation of four of easyGroup’s registered marks relating to “easyOffice” due to non-use. Given easyGroup’s large portfolio of trade marks with lengthy lists of goods and services, one wonders whether there are other registered marks which are liable to be revoked for non-use.

Takeaways

It would not be unexpected for there to be some sympathy for Easy Life, as their use of their mark in the manner depicted in their promotion poster and t-shirt seems to be parodic or humorous in nature. Unfortunately, under UK law, parody is not a defence to trade mark infringement (though it can be in the context of copyright infringement, as part of the defence of fair dealing). 

The situation is different in the US, where parody can be a defence to trade mark infringement, based on the First Amendment to the US Constitution (which prevents the making of laws that abridge freedom of speech). The parody defence was notably asserted (albeit unsuccessfully) this year in Jack Daniel's Properties, Inc. v. VIP Products LLC, where the US Supreme Court ruled in favour of Jack Daniel’s (an example of whose whiskey bottles are depicted below on the left) rather than the defendant, a dog toy manufacturer (whose “Bad Spaniels” dog toy is depicted below on the right).

The dispute between easyGroup and Easy Life certainly gives food for thought. Is it time for the UK to establish a parody defence to trade mark infringement?