Western Morning News 17 July 2003

17/07/2003

Question:
My business has a well-known name locally. My customer base is mainly in Cornwall and Devon, but I’ve got a growing number of customers from all around the country through my website. A rival business selling the same sort of products has started up with a similar name. Can I stop it?

Answer:
If you have registered your name as a trademark, you will be able to enforce this and claim damages. You might like to consider registering the name, and maybe your logo, as trademarks.

Your rival might be ‘passing off’ by deliberately or carelessly causing confusion on the part of customers and trading off your name and reputation. Your rival’s customers might think that they’re dealing with you. You might be losing trade, and the goodwill in your business might be suffering.

You can take action in the court to stop your rival from passing off. It would be best to have some evidence of confusion. Keep a diary or telephone log of customers telling you that they have called the other business by mistake, or of the rival’s customers calling you by mistake.

Much will depend on where your rival is based. The further away from your main customer base the less likelihood of passing off. Where e-commerce is concerned, location is less relevant than the name and content of the website. The nearer the name and business type is to yours, the more likely you are to succeed in seeing off the rival.

But remember, you cannot stop fair competition!

Martin Pearse, a Partner of Follett Stock solicitors, is a specialist commercial litigator, with particular experience in ADR.