Sunday, 26 February 2017

The National Guild of Removers And Storers Ltd v Bee Moved Ltd & Ors; why the court couldn’t Bee Moved on both parts of the claim

In December last year, the Intellectual Property Enterprise Court gave judgement in proceedings for passing off brought by the National Guild of Removers and Storers against ex Guild member, Bee Moved Ltd and its two director-shareholders ([2016] EWHC 3192 (IPEC)). The claim had two parts. The first concerned an alleged misrepresentation on the defendant’s website which led customers to believe that the defendant was a Guild member. This impression was created through a ‘moving checklist’ featured on the defendant’s website targeted directly at customers. The checklist gave customers advice which included to ‘check the fine print in your moving insurance’ but most importantly, ‘use a removal company who is a member of the National Guild of Removers and Storers.’ The defendant was unable to identify anything on the website which clarified this bullet point and showed that first defendant was not a member of the claimant.

The defendants relied on evidence given by the claimant in cross-examination accepting that all Guild members either expressly state membership or use the claimant’s logo to convey membership. The defendants sought to argue any member of the public would notice the absence of the claimant’s logo and therefore not conclude any trade connection had been established. The court held that it hadn’t been established that the public would even notice the absence of such logo on the defendants’ advertising. The judge could not Bee Moved on this part of the claim and held the implied representation was damaging to the claimant’s business and goodwill.

The court dismissed the second part of the claim showing they could Bee Moved in relation to this issue. The claim related to a further advertisement that was published on a third party’s website. The difference was that this advertisement expressly stated the defendant’s membership of the Guild. However, this statement had appeared by accident as a system failure caused the website to replicate itself from an earlier version. The judge accepted that when the advertisement was initially submitted to the website, the defendant was a Guild member. Therefore, as the defendants didn't intend for the third party to show the advertisement or even be aware the advertisement was being shown, they couldn't be held liable.

The claimant’s case on passing off succeeded against all three defendants in relation to the first part of the claim and failed on the second.

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