Passing Off

Is someone else using your business name?

From 1 October 2008 the Companies Act 2006 introduces new provisions allowing any person or company to object to a company name if the registration was “opportunistic” because it:

is the same as a name associated with the complainant in which he has goodwill; or
is so similar that its use in the United Kingdom is likely to mislead by suggesting a connection between the company and the complainant.

If a sole trader at the other end of the country is using the same business name, there may not be a problem. However, if another local business or a national firm is using it, this might cause a problem.

If you intend to bring a case for passing off, and can prove that your business has been harmed in some way by the other person’s use of your business name, it will help your case.

The House of Lords decision, 1979 AC 731, as cited in Erven Warnink Besloten Vennootschap v. J. Townend & (Hull) Ltd 1979, indentified the elements of Passing Off as:-

A misrepresentation made by a trader in the course of trade to prospective customers of his or ultimate consumers of goods or services supplied by him, which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and which causes actual damage to a business or goodwill of the trader by whom the action is brought or will probably do so.

For further information and advice on the above please telephone this firm.

This guide is intended as general information only and it does not seek to summarise the relevant legislation which is a complex and technical area of law. This guide should therefore not be relied upon and you should take specific professional legal advice relating to your personal circumstances prior to proceeding with any action.