The National Guild of Removers And Storers Ltd v Bee Moved Ltd & Ors

Passing off requires goodwill or reputation, a misrepresentation, and damage. A trade association may sue to protect goodwill in its trading name. Misrepresentation is established where conduct moves a substantial number of relevant persons from wondering whether there is a connection to assuming one. Mere confusion is insufficient, but the court must ask whether the conduct is really likely to damage goodwill or divert trade. A person may be liable for a misleading representation made on its own website. Liability does not automatically follow where an independent third party reproduces earlier wording without the defendant’s knowledge, intention, agency, authorisation or procurement.

The claimant, a trade association representing the removals and storage industry, alleged that the defendants had passed off their services as connected with the claimant by using references to the National Guild of Removers and Storers after the first defendant’s membership had ended.

The court considered two advertisements. The first defendant’s own website advised customers to use a removal company that was a member of the claimant. A separate directory entry on the Really Moving website stated that BeeMoved was a member of NGRS. The issues included liability for each advertisement and, in relation to the second advertisement, the personal liability of the individual directors.

1. Bee Moved advertisement. The reference in the moving checklist to using a removal company that was a member of the claimant implied that the defendants themselves were members. It was not merely general advice. The representation was damaging to the claimant’s goodwill and was more than mere confusion. Nothing on the webpage dispelled the misleading impression. All three defendants were liable for passing off.
2. Really Moving advertisement. The court accepted that the offending wording had reappeared after a website crash from an earlier version and that the defendants did not know of, intend, authorise or procure the directory entry. They were not automatically liable merely because the wording had originally come from them. The claimant’s reliance on the post-termination notification provisions was outside the pleaded case and would have prejudiced the defendants. The alternative argument based on exploiting a customer’s mistaken belief also failed because there was no evidence that a customer had made that belief clear or that the defendants had failed to correct it.
3. The claim concerning the Really Moving advertisement therefore failed. The court nevertheless stated that, had the first defendant been liable, the individual directors would also have been jointly liable. They were the company’s controlling mind, made marketing decisions jointly, and their lack of contractual privity with the claimant would not have prevented tortious liability.
4. The court followed the closely analogous reasoning in National Guild of Removers and Storers Ltd v Luckes, where unexplained reappearance of old website wording did not establish liability.