Not so easy: easyGroup wins on confusion, but loses on non-use

In easyGroup Limited v Jaybank Leisure Limited [2025] EWHC 3077 (IPEC), HHJ Hacon dealt with a trade mark claim with an unusual outcome. easyGroup succeeded on infringement in principle, but still lost the case. That is what makes the decision worth reading.

Background and the issues

The dispute concerned Jaybank’s use of EASIHIRE and easyGroup’s registered easyHire mark. easyGroup brought the claim in IPEC under section 10(2) TMA 1994. Jaybank denied infringement and raised a defence under section 11A. There was no counterclaim for revocation (including partial revocation), only a pleaded section 11A defence.

That procedural point is worth highlighting because it demonstrates how section 11A can operate as a substantive defence within infringement proceedings, rather than only through a standalone revocation claim. This case therefore turned not only on sign similarity, but also on whether easyGroup could prove genuine use for the services on which it relied.

Infringement under s.10(2)

On infringement, the court’s reasoning was more favourable to easyGroup than the final outcome might suggest. HHJ Hacon noted that conditions (i) to (v) under the section 10(2) framework were not in dispute, and that the real issue was likelihood of confusion.

The judge then found that, subject to a defence under section 11A, Jaybank’s use of its sign infringed under section 10(2).

That matters because easyGroup did not lose on sign comparison or confusion. In principle, it had a good infringement case. The problem came later, when the court looked at whether easyGroup could actually enforce the mark in the way required by the statute.

The s.11A non-use defence

This is where easyGroup’s claim unravelled.

The court set out section 11A and its interaction with section 46, including the requirement to prove genuine use in relation to the goods or services relied on (or proper reasons for non-use). The timing point also mattered: the non-use defence turned on whether the mark was liable to revocation at the relevant date, and whether easyGroup could point to qualifying use before the relevant cut-off.

The judgment then examines the evidence in detail, including use said to be shown through the easyHire.mobi and easyHire.biz websites. What is striking is how closely the court focused on what the evidence proved, not what easyGroup said its wider brand structure was intended to do. Links, cross-references and broader “overarching brand” arguments were not enough on their own to establish genuine use for the pleaded services.

In relation to easyHire.mobi, the court held there was no use of the mark for the services relied on and no proper reasons for non-use. The same evidential discipline runs through the wider non-use analysis. The result was that Jaybank had a valid section 11A defence.

Why the decision matters

At a practical level, this is a case about making sure your evidence matches your pleaded case. A claimant may have a strong confusion argument, but that will not carry the claim if the evidence of use does not map onto the services relied upon.

That matters particularly for brand owners operating across linked websites, licence structures or wider brand ecosystems. Commercially, the brand may look unified. Legally, the court will still ask a narrower question: what use of this mark has been proved for these services?

For practitioners, the lesson is simple: in trade mark litigation, evidence strategy is not a side issue. It can decide the case.