The IP Enterprise Court (IPEC) has decided in favour of a claimant in a claim in passing off against a former contractor in a dog grooming business.
Ms Thursgood, the claimant, operated a dog grooming business, which was traded as “Wash Wiggle & Wag” within an approximate 30-mile radius of Redditch. The Defendant, Danielle Laight, had previously been involved with the claimant’s business as a ‘Self-Employed Mobile Dog Grooming Partner”.
The defendant subsequently set up her own business under the Wash Wiggle & Wag name, ultimately incorporating Wash Wiggle & Wag Limited. The claimant sued the defendant in passing off.
The principle underlying the tort of passing off is that “A man is not to sell his own goods under the pretence that they are the goods of another man”. In order to succeed in a passing off claim, a claimant will need to show:
- Goodwill or reputation attaches to the goods or services (or name)
- There has been a misrepresentation by the defendant to the public which leads or is likely to lead the public to believe the goods or services offered by the defendant were the claimants
- Damage is caused to the claimant
This is the so-called “classic form” of passing off.
In this case, the court ruled that Ms. Thurgood’s business had built a strong reputation in the area by using her van with her name, ads, and social media handles. She had 700 repeat customers. By the time Ms. Laight left, the goodwill must have belonged to Ms. Thurgood since she was the owner of the business. While Ms. Laight was grooming dogs in the business, the goodwill she created was Ms. Thurgood’s.
Ms. Laight’s decision to name her own dog grooming business “wash wiggle & wag” was misleading. Her customers might have thought there was a connection between her services and Ms. Thurgood’s business. This misrepresentation hurt Ms. Thurgood’s business because she lost customers to Ms. Laight’s business, and her customer numbers dropped significantly.
The Defendant acted for herself (terrible idea generally) and tried to say she was a business partner, but dropped that argument quickly. She also said the claimant’s business collapsed because of poor customer service following an alleged injury to a dog. there was no evidence of that, and the Judge concluded that the Defendant was evasive at times and was not always clear in the witness box.
Finally, although it wasn’t required here, the case would have been even stronger had the defendant signed robust contracts with the claimant, restricting her use, as then the claim would be a breach of contract claim as well as passing off.
Laura Thurgood v Danielle Laight, Wash Wiggle & Wag Limited [2024] EWHC 2947 (IPEC)
