What constitutes passing off?
Discussion
I bought some double glazing from a firm. One of the sealed units is showing signs of failing (internal condensation) so I rang them about a warranty repair. They have moved and claim the old firm was wound up so my warranty is invalid 
So I had a look at their website. They are claiming over 5000 installations (they only reformed at the beginning of the year) and have loads of testimonials which I suspect are for the old company.
Is this passing off? It's certainly untrue in ASA terms but what laws are they likely to be breaking? As they are shirking their responsibility using the law I intend to use it to be a royal pain in the ass unless they reconsider.
ETA:
According to companies house they're still trading
Status: Active
Date of Incorporation: 25/02/2002
So I had a look at their website. They are claiming over 5000 installations (they only reformed at the beginning of the year) and have loads of testimonials which I suspect are for the old company.
Is this passing off? It's certainly untrue in ASA terms but what laws are they likely to be breaking? As they are shirking their responsibility using the law I intend to use it to be a royal pain in the ass unless they reconsider.
ETA:
According to companies house they're still trading
Status: Active
Date of Incorporation: 25/02/2002
Edited by BliarOut on Friday 16th February 13:51
Same Company name, or same Trading name?
If it's the same company name, and it's been wound up, then there's something illegal going on.
If same company, then they should honour the warranty.
If it is a different company, but the same trading name, and it appears to be the same outfit, then they can still be pursued under "Phoneix" laws mentioned above; not the simplest of cases by the sounds of things.
If it's the same company name, and it's been wound up, then there's something illegal going on.
If same company, then they should honour the warranty.
If it is a different company, but the same trading name, and it appears to be the same outfit, then they can still be pursued under "Phoneix" laws mentioned above; not the simplest of cases by the sounds of things.
Sounds like they're trying to pull a fast one there.
Perhaps ring up the company (as it is now) and ask for details of their registered office - if it is the same, and the company is listed as active (not dissolved) then for all in tents and caravans its the same company. Has the "new" company got a different name on it's advertising?
Theres got to be something about this on CAB website.
Perhaps ring up the company (as it is now) and ask for details of their registered office - if it is the same, and the company is listed as active (not dissolved) then for all in tents and caravans its the same company. Has the "new" company got a different name on it's advertising?
Theres got to be something about this on CAB website.
Passing off is something entirely different to this.
It's when Company A alleges Company B is trading using a name or style which is so similar to that of Company A as to cause confusion on the part of prospective customers, and so Company B is in effect "passing itself off" as Company A and trading on Company A's goodwill.
Sounds like the advertising on their website might be something that Trading Standards would be interested though - it's certainly being economical with the truth, if not outright misleading.
It's when Company A alleges Company B is trading using a name or style which is so similar to that of Company A as to cause confusion on the part of prospective customers, and so Company B is in effect "passing itself off" as Company A and trading on Company A's goodwill.
Sounds like the advertising on their website might be something that Trading Standards would be interested though - it's certainly being economical with the truth, if not outright misleading.
Something else that occurs to me, more as a question to pose than one for me to answer, is whether the Companies House information is up to date. I don't know whether there is a lag between documents being filed and records being amended.
I think the tack I would take is to say that the onus is very firmly on them to prove that what they say about the change of company is correct. Point them to the evidence at Companies House and on their website that you say suggests to the contrary and invite them to explain to you why your view is wrong. Make clear that in the absence of evidence from them to disprove your contention, you will have the work done yourself then issue small claims proceedings to recover from them the cost of the work or replacement products that should have been covered by the warranty.
How far it will get you, I don't know. But it at least shows that you're not going to be fobbed off.
I think the tack I would take is to say that the onus is very firmly on them to prove that what they say about the change of company is correct. Point them to the evidence at Companies House and on their website that you say suggests to the contrary and invite them to explain to you why your view is wrong. Make clear that in the absence of evidence from them to disprove your contention, you will have the work done yourself then issue small claims proceedings to recover from them the cost of the work or replacement products that should have been covered by the warranty.
How far it will get you, I don't know. But it at least shows that you're not going to be fobbed off.
BliarOut said:
The ltd company is registered at their new address however their date of incorporation is 25/02/2002 when they were at their previous premises. Surely this is the same ltd company I dealt with?
Probably a little lie to get you to go away. Try again and tell them you've checked and they are the same company, not wound up and that you'll take this to Trading Standards immediately if they don't deal streight with you.
BliarOut said:
Nope, paid cash. I'm sure it won't cost much to replace the failed unit but there is a principle at stake here 
Agreed.
So... they say the new company has nothing to do with the old one - and they tell you the old one has been 'wound up'.
Companies House says it has not been wound up.
My way forward would ignore all this. I would write to the old company expecting them to be at their registered office. If you get no response I would get a quote to replace the window as per the warranty and send them the bill in the form of a court summons which will cost you £30.
Now, if the company had not been wound up - there are probably still assets left. Maybe they are being used by the phoenix company, who knows!
The court summons will be annoying for them and may 'induce' them to make good on their warranty claims - if they ignore you can have the court send a bailiff round to the registered office to claim goods for sale. If the registered office is the same as the new company this could ne quite embarrassing.
It may work - on the other hand they may have had 10 or 100 people out of pocket by taking deposits on the Friday, shutting at the weekend and getting a new company name on the Monday to trade under a different name. Court papers may not scare them - its a part of their business plan to offer 10 year warranties knowing full well they will go on a cycle of 2-3 years closing and reopening.
BliarOut said:
The ltd company is registered at their new address however their date of incorporation is 25/02/2002 when they were at their previous premises. Surely this is the same ltd company I dealt with?
Its the company registration number which has to be the same not the company name. Its an old trick. Set up multiple companies at the same time. When one its about to go down the pan the comapny name is switched over to one of the other companies. The other common trick is to have lot of comapny name which are practically identical (acompany (GB) ltd, acompany (UK) ltd etc).
plasticpig said:
BliarOut said:
The ltd company is registered at their new address however their date of incorporation is 25/02/2002 when they were at their previous premises. Surely this is the same ltd company I dealt with?
Its the company registration number which has to be the same not the company name. Its an old trick. Set up multiple companies at the same time. When one its about to go down the pan the comapny name is switched over to one of the other companies. The other common trick is to have lot of comapny name which are practically identical (acompany (GB) ltd, acompany (UK) ltd etc).
Hopefully Trading Standards will find that out for me... I'm not really keen on having them fix it now, I'll get another unit through a trade contact. I just want to be a nuisance. Think I'll set up shop outside their new showroom when it's a nice warm day and "advise" any potential customers of how they conduct their business.
plasticpig said:
BliarOut said:
The ltd company is registered at their new address however their date of incorporation is 25/02/2002 when they were at their previous premises. Surely this is the same ltd company I dealt with?
Its the company registration number which has to be the same not the company name. Its an old trick. Set up multiple companies at the same time. When one its about to go down the pan the comapny name is switched over to one of the other companies. The other common trick is to have lot of comapny name which are practically identical (acompany (GB) ltd, acompany (UK) ltd etc).
I think they have actually changed the rules about that now, and although of course phoenix companies cannot be stopped they now have to have a name which is not similar to the other company. I believe the penalty which is threatened is the taking away of the 'limited liability' status of the company directors! ie - they end up being personally responsible for the company debts.
Check out their website.
By law from 2007 the following details MUST be shown clearly on a company website:
The company's place of registration and registered number
The address of its registered office
In the case of an investment company, the fact that it is such a company
In the case of a limited company exempt from the obligation to use the word "limited" in its name, the fact that it is a limited company
see here www.businesslink.gov.uk/bdotg/action/ruDetail?type=REGUPDATE&itemId=1078632802&r.li=1078692742&r.l1=1075193156&r.pp=12&r.l2=1075193191&r.s=p
Bear in mind you can report them and it is now an offence not to have this information on a company site and also you can confirm company reg number etc.
Forget the cost of a replacement from someone else, it's the principle in this case
By law from 2007 the following details MUST be shown clearly on a company website:
The company's place of registration and registered number
The address of its registered office
In the case of an investment company, the fact that it is such a company
In the case of a limited company exempt from the obligation to use the word "limited" in its name, the fact that it is a limited company
see here www.businesslink.gov.uk/bdotg/action/ruDetail?type=REGUPDATE&itemId=1078632802&r.li=1078692742&r.l1=1075193156&r.pp=12&r.l2=1075193191&r.s=p
Bear in mind you can report them and it is now an offence not to have this information on a company site and also you can confirm company reg number etc.
Forget the cost of a replacement from someone else, it's the principle in this case
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