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EasyJet Airline v Dainty
This case, Easyjet Airline Co and others v Tim Dainty (t/a EasyRealestate) (ChD) from February 2001, has yet only been reported on LawTel. Well done Lawtel
Although the domain name did not inherently lead to passing off, the get-up was adapted to be used for passing off. The domain name fell within the definition of a "vehicle of fraud".
The claimants ('E'), an internet airline company and various associated companies, applied for summary judgment for an injunction to restrain the defendant ('D'), a works manager in a civil engineering business, from passing off and, inter alia, for an order that D transfer the registration of the domain name easyRealestate.co.uk to E. The first claimant had since 1995 provided low-cost travel out of Luton Airport and used the distinctive name easyJet. In March 2000, D registered the domain name easyRealestate.co.uk. He intended to establish a cut-price estate agency on an internet site that bore a strikingly similar appearance in the colours chosen and the design get-up to that of easyJet. The judge described E's get-up as portraying four distinctive features: (i) the name "easy" together with another word that alluded to the service being offered; (ii) the word "easy" was always in lower case; (iii) the first letter of the second word was always a capital letter; and (iv) the get-up was in plain white lettering against a bright orange background except on occasions when the colouring was reversed. E contended that the domain name and the get-up of the web pages clearly indicated that D had sought and achieved a similarity suggestive of an association with easyJet. D denied this and argued that: (a) E could not appropriate to themselves an entitlement to an exclusive use of the word "easy"; (b) as far as he knew, E did not have any estate agency or property business that was marketed under the title of his domain name; and (c) he had no intention of taking advantage of E's goodwill.
HELD: (1) Although the E was not entitled to appropriate the word "easy", there was a likelihood of deception because of the four elements of E's get-up. The design of the website was calculated to take advantage of as close an association with easyJet as the defendant could devise. Reckitt & Colman Products Ltd v Borden & Ors (1990) RPC 341 and Neutrogena Corporation v Golden Ltd (1996) RPC 473 applied. It was legitimate to consider the possible damage to E's reputaion and busiessgoodwill. Harrods Ltd v Harrodian School Ltd (1996) RPC 697 applied. (2) It did not follow that because the use of the name did not inherently lead to passing off it was not an instrument of fraud. British Telecommunications Plc & Ors v One in a Million Ltd (1999) FSR 1 applied. In this case, although the name did not lead to passing off the get-up in total was adapted to be used for passing off and if so used in the ways indicated by D would probably lead to passing off. An injunction was therefore appropriate. (3) As the domain name was within the definition of "vehicle of fraud" and having regard to D's intention in relation to its possible sale, the transfer of the registration of the domain name to E was in principle appropriate. Marks & Spencer Plc v One in a Million Ltd (1988) FSR 265 extended. Summary judgment accordingly. Appearances: Piers Acland for E. D in person. References: LTL 28/2/2001 (Unreported elsewhere)
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