Each month we receive a raft of questions from ezine readers and website visitors. There are a couple of common themes which we’ve tried to address in the composite Q & As below (with names changed for obvious reasons). If you have any legal questions you may find the answer on the Woolley & Co website or contact us by email here.
Q If I take my case to court (I am sure I will win) is it true that I will be able to recover all of the lawyers’ fees I pay to fight the case?
A There are a number of points raised by your question. You seem very confident that you will ‘win’ and in any court case this cannot be guaranteed. You should always discuss your case with an experienced litigation lawyer and in some cases you may be able to agree an out of court settlement without the additional costs of going to court.
If the case does go to court and you are successful the court will normally order your opponent to refund some of your legal costs, but not all of them. It is a very complicated area and one covered in the recovering legal costs section of the Woolley & Co website.
For advice on commercial disputes contact: Gary Cousins at Woolley & Co on 0121 778 3212.
Q What can I do about a company with a similar name selling the same kind of products as my firm?
I own a company selling a specialist type of industrial fitting and have done so for years. My company is called Fittings Ltd. Over the last month or so, we have received telephone calls from companies I haven’t heard of complaining that we’d sold them defective fittings. They said they got our phone number from our website. I did some web research myself and found that there is a company recently registered, called Fitting Ltd, which is selling industrial fittings like ours but of a vastly inferior quality. I am concerned that people are confusing our company with theirs and I believe our reputation is suffering because of them. What can we do?
A You might be able to take action against Fitting Ltd for what is known legally as ‘passing off’. In essence, you would have to prove that:
- There is goodwill or reputation attached to your particular fittings in the mind of your likely purchasers;
- Fitting Ltd, by using a similar name or otherwise, is leading likely purchasers to believe its fittings are the same as yours or that their business was connected with yours; and
- you have suffered or are likely to suffer damage as a result.
If you can prove this, you might be able to get a court order preventing Fitting Ltd from continuing with its actions and you might be able to claim damages. A lot will depend on the particular facts and circumstances and we would need to examine exactly what has happened and is happening to advise you on how to best protect your business.
It would also be advisable for you to take advice on registering a Trade Mark, as it is very much easier to enforce a registered trade mark than making a passing off claim.
The new Companies’ Act contains a new procedure for objecting to companies being registered with a similar name. Section 69 comes into force on 1st October 2008 and will enable you to make an application to a ‘Company Names Adjudicator’ if you can prove goodwill attached to your name, Fittings Ltd, and that another company, such as Fitting Ltd, is likely to mislead by suggesting a connection between your company and theirs. This will certainly help in these types of situations in the future. |
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