INTELLECTUAL PROPERTY ENTERPRISE COURT
Fetter Lane, London, EC4A 1NL
B e f o r e :
| THE NATIONAL GUILD OF REMOVERS AND STORERS LIMITED
|- and -
|(1) ALEXANDER JUSTIN LUCKES
(2) SALLY LUCKES
(3) A. LUCKES & SONS (REMOVALS AND STORAGE) LIMITED
Thomas St Quintin (instructed by Backhouse Jones LLP) for the Defendants
Hearing dates: 21 November 2017
Crown Copyright ©
Judge Hacon :
Liability in relation to the Reallymoving Website
(1) The reference to NGRS in ALS's listing on the Reallymoving Website had been removed after the agreement of January 2010 but later reintroduced.
(2) The reintroduction of the reference happened by the end of April 2010. A misrepresentation was therefore present on the Reallymoving Website for 3 years.
(3) There was no evidence to explain how the reference came to be reintroduced. No instructions to do this came from Mr and Mrs Luckes. It was also unlikely that reallymoving.com intentionally reinstated it.
(4) The Defendants were not aware that the reference to NGRS had been reinstated until receipt of the letter of complaint from NGRS in April 2013.
(5) Consequently none of the Defendants authorised or procured the reference in issue, nor were they involved in any common design to make the reference to NGRS. They were therefore not liable as joint tortfeasors for passing off in relation to the Reallymoving Website.
(6) The Defendants' ignorance of the reference to NGRS after January 2010 meant also that they were not directly liable for passing off as primary tortfeasors.
Liability in relation to the ALS Website
(7) The reinstated reference to NGRS on the ALS Website lasted for a year before the complaint by NGRS in April 2013.
(8) Changes to the ALS Website were made by the designer of the website, Jazzbones Creative Limited ("Jazzbones"), but only as authorised by the Defendants.
(9) None of the Defendants authorised Jazzbones to reintroduce the reference to NGRS on the ALS Website.
(10) The reintroduction came about because an old page on the ALS Website which had been removed pursuant to the settlement of January 2010 was reloaded into the ALS Website in late April or May 2012. This was not done at the request of the Defendants. It was plausible that a server problem had been responsible for the page being reloaded.
(11) The Defendants were alerted to the reloading of the old page at a time which is unclear, but around mid-2012. They gave instructions to Jazzbones to amend the page, but not specifically to remove any reference to NGRS on it. The page was amended but the reference remained. This was an oversight on the part of the Defendants.
(12) Mr and Mrs Luckes were both unaware that the reference to NGRS had been reintroduced until NGRS complained about it in April 2013.
(13) The Defendants were nonetheless responsible for the misrepresentation resulting from the NGRS reference as present on the ALS Website between April or May 2012 and April 2013. This was because they were aware of the problem of the old page having been reinstated and were responsible for checking the amendments to that page carried out by Jazzbones.
(14) Consequently the use of the NGRS name on the ALS Website was an act of passing off, albeit not intentional, for which ALS was liable.
(15) Mr and Mrs Luckes were liable as joint tortfeasors with ALS, being sole directors and members of ALS.
Damages for passing off in relation to the ALS Website
(16) It was common ground that damages should be assessed according to the user principle.
(17) The fee for membership that would have been agreed in the hypothetical negotiations between NGRS and the Defendants was £2000. This was the sum awarded in damages, together with interest.
Liability of NGRS in relation to the Reallymoving Website
The knowledge of Mr and Mrs Luckes
"If you are a paid up NGRS member and would like to have information about your membership restored to the paragraph that accompanies your quote, please log in and make the necessary amendment. (Note the maximum characters in the paragraph field is 500 including spaces).
Looking ahead, we ask they you let us know by email if you leave the Guild or any other trade association so we can ensure all references are removed quickly from your account. The responsibility for this lies with you, the removals firm, to inform us. You can contact us by replying to any of our leads, or email firstname.lastname@example.org or email@example.com.
Finally, we recommend that you do a quick company search on www.reallymoving.com to ensure the information we present is accurate and up to date. Just enter your company name into the search box at the top of our home page, and all pages listing your firm will appear. Please let me know if you wish to make any changes to your company page."
"It seems to me that this is simply an administrative oversight which the companies concerned have sought to rectify as soon as they were notified."
Common law duty and/or a contractual obligation
Whether ALS was directly liable for its entry in the Reallymoving Website
Liability of the Defendants in relation to the ALS Website
Liability of Mr and Mrs Luckes as joint tortfeasors
" I interpret this to mean that in order to fix an alleged joint tortfeasor with liability, it must be shown both that he actively co-operated to bring about the act of the primary tortfeasor and also that he intended that his co-operation would help to bring about that act (the act found to be tortious). Liability will always be subject to the threshold requirement that the alleged joint tortfeasor's contribution to the act was more than de minimis."