A Step Ahead: Easyfeet Walks Away from easyGroup's Infringement Claim

The latest in a long line of trade mark infringement actions brought by easyGroup against third parties using “easy” brands has resulted in a loss for easyGroup.

The Intellectual Property Enterprise Court (“IPEC”) handed down judgment in easyGroup Limited v Easyfeetstore OÜ, Easyfeet Inc., & Andriy Klishyn [2026] EWHC 767 (IPEC) on 1 April 2026. The court held that the use of EASYFEET and an EASYFEET device did not infringe easyGroup’s trade marks . Because infringement failed, easyGroup’s passing off claim and invalidity challenge against the defendants’ own mark also failed.

What were the claims?

easyGroup Limited (“easyGroup“) claimed Easyfeetstore OÜ (“Easyfeetstore”) and Easyfeet Inc. infringed its trade marks pursuant to s.10(2) and 10(3) Trade Marks Act 1994 (“TMA”). easyGroup accepted that its allegation of passing off stood or fell with its s10(2) infringement claim.

Along with Easyfeetstore and Easyfeet Inc, Mr Klishyn (50% shareholder in Easyfeetstore and sole director of Easyfeet Inc) was alleged to be jointly liable for the acts of infringement and therefore formed part of the defendants (together the “Defendants“).  The judge held that had there been trade mark infringement and/or passing off, Mr Klishyn would have been jointly liable with the corporate defendants.

For its infringement claim, easyGroup relied on the following seven trade marks:

The claims against the Defendants were based on its online sales of orthopaedic and orthotic insoles under the signs EASYFEET and the following logo:

(together, the “Signs“)

In response to the trade mark infringement claim, the Defendants relied on s.11A TMA in relation to three of the above marks (see below).

Easyfeetstore also owned UK trade mark no. UK00003621537 for EASYFEET in Class 10 (orthopaedic insoles) (the “537 Mark“). easyGroup sought a declaration that the 537 Mark was invalid.

Enhanced distinctive character & family of marks arguments

Before considering whether the grounds for infringement under either section had been met, the court looked at easyGroup’s arguments on enhanced distinctive character and family of marks.  The judge, His Honour Judge Hacon, said he “found easyGroup’s argument on enhanced distinctive character as advanced independently of the family of marks contention hard to pin down“.

Hacon HHJ also felt that easyGroup had conflated acquired distinctive character and enhanced distinctive  character (although this had no practical impact in this case).  He explained that acquired distinctive character was a term used in s3 TMA and therefore relates solely to the validity of a trade mark.  Enhanced distinctive character, on the other hand, was a judge-made term meaning “an increased degree of distinctiveness generated by use of the mark over and above the mark’s inherent distinctive character” and was relevant as a factor going to likelihood of confusion under ss5(2) and 10(2) TMA.

Both acquired and enhanced distinctive character can only be generated through use of the mark. There was some confusion as to which of the marks relied on were alleged to have enhanced distinctive character.

Hacon HHJ assessed the mark EASYJET to have enhanced distinctive character based on use in the “holiday and travel sector“, while the distinctive character of the marks EASYGROUP, EASYFOOD and EASYFOODSTORE had only been enhanced to a modest (or “very modest“) degree. easyGroup’s evidence did not support the argument for enhanced distinctiveness for the marks EASYTRAVELSEAT or EASYLIFE.

easyGroup’s claim for enhanced distinctiveness of its marks tied into its argument that those same marks formed part of a recognised family of “easy” marks. The law stipulates that the existence of a family of marks which share common features can increase the likelihood of confusion. easyGroup claimed its family of marks consisted of EASYJET, EASYGROUP, EASYFOOD, EASYFOODSTORE and EASYTRAVELSEAT. The challenge for easyGroup was establishing public recognition of its family of marks given the only common feature was the word “easy”, which was “a conspicuously descriptive word“.

Despite easyGroup’s arguments, the judge held that it was not understood that any mark consisting of “easy” with a suffix alluding to a type of goods or services, or a store in which they could be obtained, would be connected in the course of trade to the claimed “easy” family of marks. Hacon HHJ acknowledged that easyGroup had run the family of marks arguments in previous cases, e.g. against Beauty Perfectionists Ltd ([2024] EWHC 1441 (Ch)) and Jaybank Leisure Ltd ([2025] EWHC 3077 (IPEC)), but had not been successful in either.  There was no further evidence in the current case to change that position and the family of marks argument was rejected.  As the claim for enhanced distinctive character relied principally on the family of marks argument, that too largely failed.

Trade Mark Infringement

s.10(2) TMA:  no similarity of marks, no similarity of goods/services, no likelihood of confusion

Following its assessment of easyGroup’s claims regarding enhanced distinctiveness and family of marks, the court first considered the case for trade mark infringement under s.10(2) between easyGroup’s seven marks and the Signs. There was no direct confusion, but easyGroup’s argument was that there was indirect confusion; the average consumer would not mistake the Signs for easyGroup’s trade marks but would believe that the goods offered for sale under the Signs originated from or were economically linked to one of easyGroup’s companies.

As to who the average consumer was, Hacon HHJ held this to be someone who was in the market for the type of goods or services marketed under the Signs, as opposed to those sold under easyGroup’s marks.

There was no finding of visual, phonetic or conceptual similarity between easyGroup’s seven marks and the Signs.  The family of marks argument had been rejected and any similarity between easyGroup’s marks and the Signs was limited to the overlapping “easy” prefix, which was held in Beauty Perfectionists to lack any inherent distinctive character. The judge noted that “easyGroup advanced no argument contrary to that finding” in this case, and so “there is nothing by way of visual, oral or conceptual similarity which lends support to a likelihood of confusion“.

When considering the similarity of the goods and services, it was found that no similarity existed between orthotic insoles and easyGroup’s goods and services with the exception of the medical-related apparatus and devices for which the EASYTRAVELSEAT mark was registered.

Some connection was also found between the services in easyGroup’s EASYLIFE [1] registration and the Defendant’s use of the Signs. easyGroup claimed its Easylife group had sold a wide range of goods by mail order, including insoles, and that it had also sold insoles on Amazon under trading names which included “Easylife”. However, the evidence showed the mark was used for the marketing/retail of a very wide range of goods which included, to an unquantified extent, insoles. This evidence carried no real weight in the assessment of likelihood of confusion. Furthermore, any  connection between the EASYLIFE registration and the Defendants’ use of the Signs was assessed as being “too tenuous to be of any significance“. Lastly, the absence of any evidence of actual confusion supported the finding of no likelihood of confusion.

The lack of infringement under s10(2) meant easyGroup did not pursue its allegation of passing off against the Defendants; passing off stood or fell with s10(2) infringement.

s.10(3) TMA: no reputation for most marks, no link, no harm

Turning to s10(3), easyGroup alleged infringement in respect of all its trade marks except the EASYTRAVELSEAT mark. However, Hacon HHJ felt that easyGroup had “lumped together” the claims for reputation, goodwill and enhanced distinctiveness in the Particulars of Claim, but “they need to be distinguished“.

The judge noted that “the distinctive character of a mark exists on a spectrum between the mark being highly distinctive and wholly descriptive“. On the other hand, the reputation of a trade mark is a knowledge threshold and is a binary concept: either the mark has a reputation, or it does not. The assessment is whether a sufficient proportion of the relevant public knew of the mark on the date the accused sign was first used.

The judge noted that s10(3) TMA applies even to dissimilar goods and services, so it “makes little sense to define the reputation of a mark in terms of a particular sector of commerce“.  However, as the relevant public is “that sector of the public which was likely to have encountered the goods or services in respect of which the [enforced] mark has in fact been used up to the relevant date“, it could be argued that reputation does relate to particular sectors at least partially.

Further to this, it was held, based on the evidence, that only the EASYJET and EASYFOOD marks had a reputation. That said, the lack of similarity between any of easyGroup’s seven marks and the Signs, the finding of no similarity between the goods and services for six of the seven marks, and the absence of evidence showing the public had made any link between easyGroup’s marks and the Signs, meant the judge found that the necessary link between the marks and the Signs did not exist, and there was no infringement.

Hacon HHJ went on to consider potential harm under s10(3) in case he was wrong about there being no link.  He pointed out that for detriment to the distinctive character or repute of a mark, evidence must show a change in the economic behaviour of the average consumer of the goods and services for which the earlier mark is registered.  For unfair advantage, evidence must instead show a change in the economic behaviour of the customers of the defendant’s goods and services.  Here there was evidence of neither.  The judge also pointed out that there was no specific pleading of detriment to distinctive character or repute, or of change in economic behaviour.

Furthermore, where marks have been side-by-side trading for some years, it is to be expected that a change of economic behaviour on the part of the average consumer will have already happened, so a risk of detriment alone is not enough to rely on when claiming detriment.

Non-use defence – s11A TMA

In response to the infringement claim, the Defendants relied on the defence of non-use, pursuant to s.11A TMA, which provides:

“The proprietor of a trade mark is entitled to prohibit the use of a sign only to the extent that the registration of the trade mark is not liable to be revoked pursuant to section 46(1)(a) or (b) (revocation on basis of non-use) at the date the action for infringement is brought“.

At the point of trial, the s.11A defence was only relevant to the EASYFOODSTORE and EASYLIFE (device) marks, with evidence of genuine use being required for the relevant period 27 June 2018 to 26 June 2023.

The evidence produced by easyGroup with respect to the EASYLIFE (device) mark showed the mark had been used in the relevant period for online retail services in relation to a potentially broader range of goods than that the Defendants had conceded. Marks for retail services must specify the types of goods to which those services relate.  While one witness said he had supplied insoles to Easylife for 7 or 8 years, there was no documentary evidence to back this up or quantify it.  Hacon HHJ expressed doubt that would have been adequate to prove use for s11A, but given the finding of no infringement, the Defendants did not need to rely on the s.11A defence and so it was not considered further.

Invalidation of the 537 Mark

It was agreed between the parties that a finding of invalidity under s.5(2)(b), s.5(3) (Hacon HHJ referenced “s.5(2)(c)” but clearly meant “s.5(3)”) and s.5(4)(a) would be dependent on a finding of infringement under the comparable provisions of s.10(2), s10(3) and the tort of passing off.

As easyGroup was unsuccessful in its claim for infringement, its claim for invalidity also failed.

Practical takeaways

The decision highlights a number of practical points:

• Draft your pleadings carefully and comprehensively, making no assumptions.  Separate the different concepts you are claiming.
• Making good a “family of marks” argument requires more than mere reliance on the existence of a common element, especially where that is an ordinary word with little distinctive character.
• Make sure your evidence robustly shows what it needs to, and goes to all elements of your case.  Do not assume that reliance on a prominent brand (here, EASYJET) with a reputation and enhanced distinctiveness is sufficient to show the requisite similarity or link.
• Do not assume you can re-use evidence used previously without modification.

Footnote

¹ The “easylife” marks have been deployed by easyGroup in other recent cases.  See for example our blogs here: No easy victory for easyGroup in second trade mark action against Easy Live (Services);  Court of Appeal “easily” reconciles High Court’s contradictory outcomes on permissible variants and partial revocation

This article was authored by Kishen Karia, Chartered Trade Mark Attorney in the IP team at Fieldfisher. It was originally published on the Fieldfisher IP blog, SnIPpets, on 19 May 2026.