High Court employs ‘intention to target’ approach to determine application of EU/UK law in online trade mark infringement case

The High Court recently issued a judgment concerning determination of the law applicable to online trade mark infringements in the case of Easygroup Ltd v Easy Fly Express Ltd & Chowdhury.

The Claimant, easyGroup is the proprietor of the word mark EASYJET and the word easyFlights. The two Defendants’, Mr Chowdhury and his company Easy Fly, both based in Bangladesh, are the holders of the domain www.easyfly-express.com from which Easy Fly’s services were marketed.

easyGroup claimed that the Defendants’ use of the signs amounted to infringement of its registered trademarks, as well as passing off.

In order to qualify as an infringement of a UK or EU trade mark, the use of the Defendants’ sign must essentially be targeted at an UK audience or at somewhere in the EU.

easyGroup argued that the Defendants would target the UK and the EU by noting that the Defendants’ website and Facebook page were in English. The judge however, found that English is widely spoken in Bangladesh is the dominant language used on websites globally. The Defendants also established that there were no UK or EU contact details on their website or social media platforms.

Furthermore, by typing in the words “cargo flight Bangladesh” on Google Search, the Defendants’ website showed up as the second hit. However, there was nothing to suggest that the service targeted the UK or Europe since the Google search included the country “Bangladesh”.

In light of the above there was nothing to suggest that a UK or EU consumer was targeted by the Defendants’ services. The only other factor relied upon by easyGroup as supporting a conclusion to the contrary was the resemblance between the defendant’s signs and easyGroup’s trademarks.

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