The Intellectual Property Enterprise Court has upheld a passing off claim brought by the owner of a dog grooming business against a woman who provided dog grooming services using the business's name.
The woman had previously been involved in the business, but subsequently incorporated a company with a name identical to one of the business's trading names, through which she provided dog grooming services on her own. After the business's owner brought a claim for passing off against her and the company, she denied that her actions constituted a misrepresentation. She claimed that the business had not traded sufficiently under the name to have established goodwill, that she had been the only dog groomer in the business within the area and had built up her own reputation, and that no one had thought that the services she offered after she had left the business were associated with it.
Evidence was presented that the business's name appeared on the van it used for mobile grooming services, which was sometimes parked at busy shopping centres to help promote the business. Adverts for the business which used the name had appeared in at least four local newspapers and an online business directory.
The Court found that the use of the name by the business had created goodwill. It rejected the woman's submission that that goodwill attached to her as a dog groomer rather than to the business. While customers clearly had some loyalty to her, and there had been positive reviews of her services, that did not detract from the legal position that the goodwill generated belonged to the business.
The Court was satisfied that the woman's adoption of the name amounted to a misrepresentation. The name was used for identical services in relation to the same customers. Customers would have thought that there was a connection between her services and those of the business.
Finding that there was clear evidence that the woman had diverted customers from the business to her company, the Court was also satisfied that the misrepresentation had caused damage to the business. The claim for passing off had therefore been established.
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