In brief
A specification should be considered in the trade mark context, not simply in the everyday meaning of the language. Explanatory Notes from the Nice Classification (of goods and services) should be used to assess what is meant in the trade mark context.
The 'whole supermarket' argument (namely that if you interpret the meaning of something too widely, then it could include anything) is not a runner. If it were, 'advising on travel services', which was in issue in this case, it could mean advising on anything, because a person can do anything when travelling.
Background
An individual, Christopher Clark, applied to the UKIPO to revoke easyGroup's easyGuide trade mark (set out below) for non-use. The mark was revoked by the Hearing Officer in its entirety and easyGroup appealed, limiting its appeal to certain Class 39 services: "Transport, travel arrangement; provision of information and advice relating to travel and all of the aforesaid".
The appeal
The Appointed Person dismissed the appeal. The appeal focused on whether easyGroup's use of the 'easyGuide' mark on a web-based booking platform for activities such as excursions and show tickets constituted genuine use for the class 39 travel services.
What constitutes 'travel' services?
easyGroup argued that 'travel' should include all information about activities a person might undertake when in another city or country, going beyond simply getting from A to B. The Appointed Person rejected this broad interpretation, finding it would create a "whole supermarket" problem, where advising on almost anything would fall within the meaning of "advising on travel services" because a person can do almost anything when travelling.
Nice Classification guidance
The decision turned on the proper interpretation of Class 39 services using the Nice Classification Explanatory Notes, which include "services consisting of information about journeys or the transport of goods by brokers and tourist agencies, information relating to tariffs, timetables and methods of transport" but specifically exclude "services relating to reservation of rooms in a hotel by travel agents or brokers" and "conducting guided tours". The Appointed Person concluded that, if booking rooms by travel agents did not fall within Class 39, it was difficult to see how day-to-day activities one might undertake while travelling would be covered by "travel" in Class 39.
Takeaways
Narrow construction of service specifications – the Court will interpret trade mark specifications narrowly, particularly when guided by Nice Classification explanatory notes. Broad interpretations that could encompass almost any activity will be rejected.
The evidence must match the registration – in this case, booking platforms for entertainment and tourist activities did not constitute use for transport and travel arrangement services, even if used by travellers.