It’s not that easy – what can you learn from easyGroup’s brand protection strategy?  

EasyGroup, the owner of budget airline EasyJet, regularly makes headlines with its uncompromising brand protection strategy. In the past, it has taken umbrage with businesses using the word ‘easy’ across sectors as diverse as food (EasyPizza), online charity shops (Easyfundraising), and even music.  

Given that ‘easy’ is an everyday word, business owners can sometimes be left scratching their heads about how easyGroup can prevent them from using it, particularly when their offerings differ from those of easyGroup. Taking a closer look at trade mark law can help put things in context.  

In this article, our trade mark lawyers examine easyGroup’s brand extension and protection strategies and consider their effectiveness. We discuss the company’s successes and failures in terms of branding and explain what your business can learn from them.  

What is easyGroup’s branding strategy? 

EasyGroup has made inroads into various other industries, including hotels, fitness, and storage solutions. It has done so by consistently using the core features of its branding, notably the ‘easy’ name followed by a description of the services in question coupled with its distinctive orange and white colours. 

The company cleverly leverages its existing brand recognition and goodwill to enter new markets, capitalising on the advantage of being seen as a provider of no-frills services at a low price. This strategy is known as ‘brand extension’.  

As part of its brand extension strategy, easyGroup has registered more than 250 trade marks in the UK and many more globally for brands including ‘easyJet’, ‘easyBus’, and ‘easyStorage’.  

Does this mean that easyGroup has a monopoly over the word ‘easy’? 

EasyGroup does not have a monopoly over the word ‘easy’, a fact which the Courts have been keen to stress. However, the company’s brand extension and protection strategies mean that businesses planning to incorporate the term ‘easy’ in their own branding must tread carefully.  

To understand the law in this area, it’s important to understand the principles of trade mark infringement in the UK. 

What is trade mark infringement? 

A registered trade mark gives its owner a monopoly over the mark in connection with the goods and services it is registered for. If a third party does any of the following acts without the trade mark owner’s permission, they may be liable for trade mark infringement: 

• Using an identical mark in respect of identical goods or services;  

• Using an identical mark in respect of similar goods and services, and there is a likelihood of confusion among the public; or 

• Using a similar mark in respect of identical or similar goods and services, and there is a likelihood of confusion among the public.  

Well-known brands enjoy additional protection in recognition of their far-reaching reputation among the general public. As a result, owners of trade marks with a significant reputation can object to third parties who use a similar mark, regardless of whether the third party’s offerings are similar to theirs.  

What is easyGroup’s brand protection strategy? 

EasyGroup is notoriously litigious, having pursued several businesses for using the ‘easy’ name. Just a few of the businesses that have found themselves in a dispute include the holiday company Easyway, the office space brokerage business EASYOFFICES, the indie band Easy Life, and the individual behind the patio cleaning business ‘EasyJetwash’.  

Brand extension  

The company often relies on its extensive brand extension strategy to strengthen its trade mark infringement claims. The basis upon which it does so depends on the facts of the case, but it has so far included: 

• The company’s considerable trade mark portfolio for its numerous brands, which includes marks like ‘easyHotel’, and ‘easyMoney’, enables it to assert that it owns a ‘family’ of trade marks. Owing a family of trade marks sharing a common core feature – in easyGroup’s case, the word ‘easy’ followed by the services - can strengthen an infringement claim. 
  
  Judges have been willing to accept that easyGroup owns a family of trade marks featuring the word ‘easy’. However, that alone is not sufficient to prove infringement. A trade mark owner must still establish in any given case that the third party’s similar mark presents a likelihood of consumer confusion. Owning a family of trade marks can contribute to such a finding, but the Judge will consider the facts of each case when reaching their decision. 
• Registering each brand extension as a separate trade mark is unnecessary for a brand extension strategy to strengthen a business’s infringement claims. Sometimes, merely having one registered trade mark alongside a number of sub-brands using a core element of the registered mark can suffice to give weight to allegations of trade mark infringement. 
  
  Unless the third party mark complained of is identical to one the brand has registered as a trade mark, a key requirement in most infringement claims is that there is a likelihood of confusion on the part of the public. Usually, brand owners rely on ‘direct confusion’, where consumers believe the third party’s mark to be that of the trade mark owner. However, another type of confusion, known as ‘indirect confusion’, exists. This is where brand extension can sometimes support an infringement claim. 
  
  Indirect confusion is where consumers are not confused into believing the third party branding is the registered trade mark, but instead will likely believe that the two offerings are economically linked in some way. Where a business like easyGroup is well known for operating brand extensions, consumers are arguably more likely to mistakenly assume that a business using similar branding is a sub-brand of that business. In easyGroup’s case, the potential for indirect confusion arises, in part, from its widespread use of the term ‘easy’ in connection with businesses across several sectors.  
  
  As always, the brand extension element of an infringement case will be considered in conjunction with other factors that may give rise to a likelihood of confusion. These include the extent of the similarities between the third party’s mark and that of the trade mark owner, the nature of the marketplace, and the attention paid by the average consumer.  

Goodwill and reputation in a registered trade mark 

• EasyGroup regularly seeks to rely on its strong reputation in the UK to benefit from the additional protection enjoyed by well-known brands. The company claims that its trade marks are widely known in the UK, and that the third party’s branding takes unfair advantage of, or is detrimental to, the distinctive character or reputation of those trade marks. 
  
  EasyGroup has persuaded several judges that its marks, particularly its ‘easyJet’ trade mark, have the reputation required to benefit from this added protection. Whether or not the third party’s branding damages the mark’s distinctiveness or reputation hinges on easyGroup being able to prove that the third party’s branding took unfair advantage of, or was detrimental to, the distinctive character or reputation of its trade mark.  

Passing off 

• Another connected but distinct legal claim sometimes relied on by easyGroup is known as ‘passing off’. Passing off is sometimes referred to as an unregistered trade mark right because it prevents third parties from using branding that is similar to someone else’s if doing so implies that their offerings are in some way connected with the other brand and causes it harm.  
  
  A key requirement of any passing off claim is that the claimant has goodwill in its branding. EasyGroup frequently adds a passing off claim alongside its trade mark infringement claims, arguing that the third party in question has harmed its brand through its use of the word ‘easy’.    

How successful is easyGroup’s brand protection strategy? 

In some respects, easyGroup’s brand protection strategy is incredibly successful. By branching out into numerous different sectors under the ‘easy’ brand, securing an extensive trade mark portfolio for brands incorporating the word ‘easy’, actively monitoring any third party use of the “easy” branding, and taking swift action to curb it, easyGroup has built and maintained a strong, recognisable identity, despite having adopted an everyday word as its key identifier. The company even has a dedicated page on its website entitled ‘Brand Thieves’, which it uses to showcase its victories against alleged infringers. 

easyGroup has enjoyed varying success in the Courts. With its relentless brand extension and protection strategies, the company is subject to the same trade mark principles as any other brand, albeit one with a notable reputation in the UK and numerous sub-brands.  ‘Easy’ remains an everyday word, and the use of it alone is unlikely to constitute infringement. Context is key, and the style of branding, including the font and colour, as well as the goods or services in connection with which the third party is using it, can all have a determinative impact on the outcome of infringement proceedings.  

It is easyGroup’s litigious approach to any perceived infringement of its marks that makes it a particularly potent adversary. The company’s considerable resources allow it to pursue claims and often, those at the receiving end are forced to capitulate to avoid incurring the cost of defending legal proceedings.  

The case of Joseph Spekker’s patio-cleaning business ‘EasyJetwash’ highlights the impact of easyGroup’s unforgiving approach on smaller businesses. When easyGroup discovered Mr Spekker’s business, it threatened legal action, claiming that it infringed the ‘EasyJet’ trade mark.  

Despite Mr Spekker maintaining that his business name was inspired by the ease with which he could clean driveways and patios, he publicly stated that he could not afford to become embroiled in a legal dispute with easyGroup. As a result, he agreed to pay damages and legal costs to easyGroup, and renamed his business ‘Stoke Jetwash’. 

What does this mean for brand owners? 

Business owners can learn a lot from easyGroup’s branding strategy. From a risk perspective, easyGroup’s aggressive stance on brand protection is a cautionary tale against using any elements of its branding, no matter how minor, without taking expert legal advice first. Even if you believe your proposed branding has no chance of causing confusion between your offerings and those of easyGroup, the company’s zero-tolerance approach has the potential to result in a legal dispute. 

From a brand protection perspective, easyGroup’s unyielding policy should be adopted with care and consideration. Bringing infringement claims that have limited chances of success not only wastes the Court’s time and resources, but it also exposes you to substantial legal costs. While easyGroup’s pockets might be deep enough to absorb any losses brought about by failed Court claims, such an approach can be incredibly costly and is not one most business owners can afford to take.   

Gosia Evans, Senior Contentious IP Lawyer at Harper James shares some tips for brand owners that are looking to adopt a similar approach to brand protection:

Although brand protection should be a top priority for every business, it is essential to adopt a sensible, targeted approach. This involves only applying for trade marks you are likely to use, enforcing those marks against third parties whose use constitutes genuine trade mark infringement, and reserving Court proceedings for cases where your claim has a strong prospect of success. Knowing where to draw the line can be tricky and requires a careful risk-benefit analysis and applying the “Just because you can doesn’t mean you should” principle. By focusing your efforts where they are needed, you can effectively protect your brand, maintain your reputation, and limit legal costs.

On the other hand, by pursuing spurious claims, you run the risk of financial losses associated with court litigation, negative publicity and reputational damage and also, in practical terms, some of your trade marks may be cancelled for non-use or at least reduced in scope, as easyGroup has discovered.