The High Court has refused to hear an action by companies in the EasyJet group alleging trademark infringement and passing off action against a company with the name "Easy" in its title.
EasyGroup Ltd and EasyGroup IP Ireland Ltd sued Easy Forex Trading Limited and its parent company, Blue Capital Markets Ltd, claiming its intellectual property rights were being breached by Easy Forex’s use of "Easy". It also sought an injunction directing Easy Forex to change its name and not to use "Easy" in its name.
Easy Forex markets the provision of financial services to trade in foreign exchange, option contracts, and other financial instruments.
Easy Forex denied the claims and brought an application seeking an order that the Irish courts do not have jurisdiction to hear the case under EU trade mark regulations and under the Recognition and Enforcement of Judgments in Civil and Commercial Matters (known as the “Recast Brussels Regulation”).
Mr Justice Michael Twomey declined jurisdiction to hear the case here and adjourned the question of costs for a week.
The judge said one of the key issues in the case was that Easy Forex, which is based in Cyprus, had 11,255 world-wide users of their web-based financial services and of these some 16 were based in Ireland.
Although one is dealing with the sale of services here, as distinct from the sale of goods into an EU member state, the judge said this raised the question of whether the sale of a service to even one person based in one member state (Ireland) means that Easy Forex - based in another member state of Cyprus - can be sued for trademark infringement in Ireland rather than in Cyprus.
Easy Forex provides its services using its website www.easymarkets.com and an app named ‘easyMarkets Online Trading’.
Easy Group is the registered proprietor of five EU trademarks with the word ‘easy’, including the word "easy" itself, easyMarketing, and easyMoney.
It said it is entitled to issue proceedings in Ireland, rather than Cyprus, Easy Forex's "country of domicile".
Easy Forex said Easy Group is not entitled to do so under the regulations.
Evidence
Easy Forex provided evidence of its 16 Ireland-based clients and said this was simply a consequence of it being authorised to carry on business throughout the EU as an online trading platform and website, the judge said.
It said it does not target the Irish market and spends no money on advertising in Ireland, unlike, for example, its approach to the Spanish market, where for example, it is a sponsor of the Real Madrid football club.
Mr Justice Twomey said the court did not accept that the fact that Easy Forex happens to have 16 customers in Ireland means that it can per se be sued in Ireland under the trademark regulations without any consideration of whether in fact Easy Forex is targeting customers in Ireland.
Case law makes it clear there must be a “targeting” of customers in Ireland for Easy Forex to be sued in Ireland, he said.
The judge also noted that with just 16 customers in Ireland, it was ironic that any publicity which this case receives “could lead to more consumers in Ireland searching for the Easy Forex website even though Easy Forex is not targeting those customers".
In relation to Easy Group's claim that Easy Forex was targeting customers in Ireland through its easyMarkets app, the judge said in much the same way as the accessibility of its website does not mean it is targeting Ireland, it was the court’s view that the fact it was capable of being downloaded in Ireland does not amount to targeting of Ireland.
He also rejected claims about Easy Forex results in a Google keyword search and in relation to its use of ".com" website rather than a ".cy" (Cyprus) website.
He also said that just as there was insufficient targeting to permit the trademark infringement proceedings to be heard in Ireland, it seemed to the court that there was insufficient targeting to permit the "passing off" proceedings to be heard in Ireland.
The court declined jurisdiction in respect of both infringement and passing off claims.
