Easyjet Airline Ltd. & Others v. Tim Dainty (t/a Easy Real Estate)
The First Claimant is the airline company EasyJet, it conducts most of its business through Internet transactions and was reported to have spent in the region of Â£30 million in advertising alone. Its mark comprised of a distinctive get up in an orange and white colour.
The Second and Third Claimant are incorporated in the same group ÂEasyEverythingÂ, providing Internet cafÃ services and vehicle hire services, using the same distinctive mark as the First Claimant.
The Defendant had registered the domain in dispute easyrealestate.co.uk, using the domain to trade in online estate agency services. The First Claimant submitted to the court that the Defendant had approached it with a business plan with the intention of collaboration, which the First Claimant rejected.
The Claimant claimed that when the Defendant posted its Âget-upÂ on the Internet it was confusingly similar to that of the ClaimantÂs site. The Claimant approached the Defendant requesting that it ceased its activity as using such a getup was infringing the ClaimantÂs trademark rights.
The Defendant contested the ComplainantÂs complaint as its business was a tremendous success and it further contended that the Claimant has no exclusive monopoly over the word ÂeasyÂ and should be free for others to use. The Defendant further suggested that he had received several offers for the purchase of the domain and would sell such domain to the highest bidder.
The Claimant applied for a summary judgement requesting an injunction and a transfer of the domain on the grounds of passing off.
The court granted a summary judgement and ordered that the domain be transferred to the Claimant. It went on to say that an intention to misrepresent the consumer was not an essential ingredient for passing off. However, if there was an intention to deceive the public, it would be positive evidence to demonstrate that deception is likely to occur.
However, the court stated that the Claimant has no particular monopoly in the word easy, but in this particular case the Defendant traded in similar services and would potentially be deceptive.
Surprisingly, the court indicated that consumer confusion was not the sole test to demonstrate damages, but it would be possible if such use would take unfair advantage of the ClaimantÂs goodwill or reputation Â this would seem to be another case that has clearly indicated that dilution exists in the common law tort of passing off and trademark infringement (most notably s. 10 (3)).
The fact that the Defendant had lied about being approached about selling the domain further indicated bad faith registration of the domain, by attempting to deceive the Claimant into purchasing the domain for a large sum.