Bennison really is the gift that keeps on giving! Just when you think there can be nothing else he could do to astonish everyone, up he comes with yet another silly idea.
What’s in a name?
Usually the name of a website matches the domain name, if you have a domain called bailiffhelpforum you’d call your site “Bailiff Help Forum”, right? At least this is what most people would do, and what Bennison did for over five years, ever since he set up the site in question. Then, one day, the site was suddenly called “Dealing with Bailiffs”. This was a little odd, as he has another, totally separate site, called exactly that, his business site, the one where he offers his “low cost drafting services”. You can read more about this other site here: Dealing with Bailiffs and Beat the Bailiffs Wrong Again.
Around a week or so ago, Bennison decided to rename BHF to “Bailiff Talk”. You couldn’t quite figure out what to expect from a site of that name, was it a place where bailiffs could talk between them or a space to talk about them? It didn’t sound like a place where you could get help with bailiff issues such as Bailiff Help Forum or how to deal with them, as in Dealing with Bailiffs. It was an odd choice of a name, and an odd decision to rename the site. There could only be one reason for that: an attempt to distance himself from this site, which highlights the shortcomings of his Bailiff Help Forum.
A step too far
A few days later, we had yet another surprise: Bailiff Help Forum had now been renamed “Bailiff Advice Online”. This name now appears at the top of every forum page as well as being part of each page title. There is already a site of that name, which uses a domain of the same name. This is a well known, highly regarded, reputable source of bailiff advice that has been around for over 10 years, much longer than BHF. It has never had any association of any kind with Bennison’s site, in fact, the advice provided on BHF and DWB is often at odds with the advice provided by Bailiff Advice Online.
Bennison and his Loyal Followers (all two of them) have worked very hard to vilify and discredit the work of Bailiff Advice Online, so it is very odd that he should have decided to adopt this name for his own site. The only reason for him to take this step would be to upset, alarm and distress the owner of the site of that name.
Passing off is leading people to believe that the goods or services provided are those of another.
Elements of the action for passing off.
The necessary elements of the action for passing off have been restated by the House of Lords as being three in number:
- that the claimant’s goods or services have acquired a goodwill in the market and are known by some distinguishing name, mark or other indicium;
- that there is a misrepresentation by the defendant (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by the defendant are goods or services of the claimant; and
- that the claimant has suffered or is likely to suffer damage as a result of the erroneous belief engendered by the defendant’s misrepresentation.
Source: Halsbury’s Laws of England
If Bennison thinks he can get away with arguing that “Bailiff Advice Online” is simply a string of descriptive or generic words, he should know that:
It is possible for a word or phrase which is wholly descriptive of the goods or services concerned to become so associated with the goods or services of a particular trader that its use by another trader is capable of amounting to a representation that his goods or services are those of the first trader. In these circumstances it is sometimes said that, although the primary meaning of the words is descriptive, they have acquired a secondary meaning as indicating the products of a particular trader and no other.
Halsbury’s Laws of England also provide us with the relevant remedies, particularly:
Interim remedies are of particular importance in infringement and passing off cases. These remedies include interim injunctions, search orders, orders for immediate disclosure, freezing injunctions and, on occasions, certain orders under the protective jurisdiction of equity against non-infringers (for example, disclosure of names of infringers and interim preservation). Summary judgment is also available in suitable cases. Applications for interim relief should be considered in all cases, as a successful application almost always results in an early termination of the infringement and also a considerable saving in time and costs.