Easygroup Ltd v Empresa Aerea De Servicios Y Facilitation Logistica Integral SA (Easyfly SA) & Anor

Easygroup Ltd v Empresa Aerea De Servicios Y Facilitation Logistica Integral SA (Easyfly SA) & Anor

There was a failure of full and frank disclosure to the court on the original without notice application for service out, as the claimant did not clearly state that Easyfly only operated domestic Colombian flights and did not fairly present the defendants' position. This justified setting aside the order granting permission to serve out. The other procedural defects were not material. There was a serious issue to be tried on the merits of the trade mark and passing off claims against the Defendants, but the claims against ATR for acts in France/Spain could not be heard in England due to lack of subject-matter jurisdiction under the EUTMR. The only claim against ATR that could be heard in...

Parties
Claimant: easyGroup Ltd; 1st Defendant: Empresa Aérea de Servicios y Facilitatión Logística Integral S. A. – Easyfly S. A.; 2nd Defendant: Mr Alfonso Ávila Velandia; Proposed 3rd Defendant: GIE Avions de Transport Régional trading as ATR Aircraft
Jurisdiction
England and Wales
Judgment Date
14 January 2020
Procedural Posture
Intellectual Property (trade Mark) Claim / Interlocutory Applications: Challenge to Jurisdiction, Application to Set Aside Service Out, Application to Join Additional Defendant
Outcome
Order granting permission to serve out set aside; application to join ATR dismissed; no substantive determination on merits of infringement or passing off claims.
Legal Topics
Trade Mark Infringement, Passing Off, Jurisdiction (service Out of Jurisdiction), Conspiracy to Use Unlawful Means, Procedural Fairness (full and Frank Disclosure)
Intellectual Property Civil Procedure Trade Mark Infringement Passing Off Jurisdiction (service Out of Jurisdiction) Conspiracy to Use Unlawful Means Procedural Fairness (full and Frank Disclosure)

Case Brief

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Parties

easyGroup Ltd

Claimant

Empresa Aérea de Servicios y Facilitatión Logística Integral S. A. – Easyfly S. A.

1st Defendant

Mr Alfonso Ávila Velandia

2nd Defendant

GIE Avions de Transport Régional trading as ATR Aircraft

Proposed 3rd Defendant

Procedural Posture

Intellectual Property (trade Mark) Claim / Interlocutory Applications: Challenge to Jurisdiction, Application to Set Aside Service Out, Application to Join Additional Defendant

Legal Issues

  1. 1 Whether the English court has jurisdiction to hear claims of trade mark infringement, passing off, and conspiracy against foreign defendants
  2. 2 Whether there was a failure of full and frank disclosure justifying setting aside permission to serve out
  3. 3 Whether the acts complained of constitute use of the trade marks in the UK/EU

Ratio Decidendi

There was a failure of full and frank disclosure to the court on the original without notice application for service out, as the claimant did not clearly state that Easyfly only operated domestic Colombian flights and did not fairly present the defendants' position. This justified setting aside the order granting permission to serve out. The other procedural defects were not material. There was a serious issue to be tried on the merits of the trade mark and passing off claims against the Defendants, but the claims against ATR for acts in France/Spain could not be heard in England due to lack of subject-matter jurisdiction under the EUTMR. The only claim against ATR that could be heard in...

Court Disposition

Order granting permission to serve out set aside; application to join ATR dismissed; no substantive determination on merits of infringement or passing off claims.

Orders

  • Order of Morgan J granting permission to serve the Defendants out of the jurisdiction set aside for failure of full and frank disclosure.
  • Application to join ATR as 3rd Defendant dismissed as there are no extant proceedings.