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Alex J.
Alex J., Solicitor
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Hi. I need no now relevant information regarding clothing

Customer Question

Hi. I need no now relevant information regarding 'clothing bank/textile banks'

Each question is a different number

1.) The first question is I don’t understand the difference between a 'contractual' and a 'bare' license? What is the simple term?

2.)Also when it is saying 'license' it actually means a contract i.e. on PAPER and to be signed??? On any site say council, supermarket etc….
3.) If I go to a supermarket and they agree and sign my forms, would this be under a 'Contractual or a 'bare' license. I am bringing customers to the Supermarket so am providing a service could this be under any license? But on some occasions they will require payment per tonne. But I read it states if payment is active or it is showing 'consideration' for a supermarket i.e bringing in customers it is a contractual license? If it is 'contractual' do I put that as my heading on paper?

I also have many questions to follow. Needing in depth knowledge and research, on laws regarding placing of clothing banks etc.. I have a all documents listed in links just need you to check the relevant information on certain parts with me after this information is achieved. Thanks, XXXXX XXXXX
Submitted: 2 years ago.
Category: Law
Expert:  Alex J. replied 2 years ago.
Hi

Thank you for your question and welcome.

My name is AJ and I will assist you.

I will write a response to all your questions and post it this morning.

In the mean time can you repost the link you mention and also give me a little be more detail on the proposed business? Will you source people who are prepared to donate to supermarket clothes banks by the tonne?

I look forward to hearing from you.

Kind regard

AJ
Customer: replied 2 years ago.

Hello. I am going to be an investor/contractor for a commercial company who distributes bags in the .u.k. I know my area well and have good experience in emptying clothing banks in the region, but there is a lack of banks in the region and would like to place textile banks on several sites for the company. The company has agreed and we have a contract which states the all clothes generated by my banks will go to the warehouse to be recycled/reused, just as they would if I give the bags out and then collected them in and took them to the warehouse. The banks look like the bags distributed and have the same information on them, The company has 3 charities to choose from but the one I have selected does not pay the charity on income of weight or nothing like that. Instead it pays a large ££££ sum of money every month. So the charity makes money, no matter what. I have been looking at all rules and regulations and have found all that is needed. I collect all textiles and transport them to the company warehouse for which it gives a royalty payment every month even if I don't bring enough clothes in for e.g, just as I would be with putting bags out. But instead I have clothing banks. I just need to check that I am correct and I am allowed to place textiles banks, with there information on, etc.... on the right side of the law. It states that:- On the tra (Textile recycling assisocation) Type into google get there home page and then click on 'new code for its members'. It is a word document it shows that in 'clothing banks' it has red words which is what is mandatory by law. It does not matter if I am a member with them or not, the law is the red terms you will see it, in the document (I am not a member or nothing affiliated in any way, just using the term for reference use only).... members that operate clothing/textile collection banks must:

 

  • • Obtain a licence from the land owner (or appropriate site management organisation) to place a clothing textile bank at a particular named site;

Other good documents you will need to look at are:- http://www.wrap.org.uk/content/textile-collection-guide This has listed documents down the side one of which is called 'guidance on removal of clothing banks' it is a pdf file and most of the best bits are listed below "It is not likely that operators will Have been able to establish a tenancy and therefore their right to be on any particular Site is likely to be on the basis of a licence to occupy. This can either be a bare licence or a contractual licence. If it can be established that bank operators are there as a contractual licensee that licence can be revoked at any time. However, if on a proper construction of the licence it is only revocable after a certain time, then it may be possible for the licensee to obtain injunctive relief. Even if on its proper Construction the licence is terminable forthwith, the licensee will be entitled to a reasonable period to remove their goods and effects. A contractual licence could arise where a bank operator pays a landowner such as a supermarket directly or where it can be shown that the operator is providing "consideration" (i.e. a service for the supermarket). It could be argued that a bank operator is providing a service to a supermarket's customers and as such are providing consideration to establish a contractual licence. That said, we are not aware of any direct legal precedent that is relevant for establishing a contractual licence. In the absence of a contractual licence then it is likely that a bank operator would have a bank on site under a bare licence. There is precedence for establishing that even where someone occupies a site as a bare licensee they are entitled to reasonable notice."

 

As mentioned before I did empty clothing banks but for a well known charity, (Clothes were taken to the shop) but all this finding sites/law etc. was done for me. But I did have to go to the council or say a supermarket and hand a contract say in. (A4 peice of paper) signed by both parties me the collector and site owner. Which would state that they have given me permission to be on the land etc. and to recycling the textiles etc. . . . On behalf of.... we undertake to keep the area clean and tidy etc....

But it did not say if it was a 'contractual' or 'bare' license.

 

Good links for required information

http://www.textile-recycling.org.uk/ (On page is a link for 'new code of practice' with 2 bullet point requirements by law for clothing banks)

Also this is the main charities act 2006 listed below for guidance

http://webarchive.nationalarchives.gov.uk/20100304041448/http:/www.cabinetoffice.gov.uk/media/cabinetoffice/third_sector/assets/charities_act06_large_print.pdf

 

 

http://www.wrap.org.uk/content/textile-collection-guide (pdf files on the right hand side of the page running down the page) Important ones are 'west midlands waste authorities legal advice' and 'guidance on removal of clothing banks' Both have the requirements for my answers/law

 

Whether it is a bare or contractual licence will depend on the individual facts and whether the landowner has received some "consideration" for the licence agreement <This is listed in 'guidance of removal of clothing banks' Listed in summary section so the difference is licenses must depend on 'consideration' what type of license it is?

 

I plan to place around 10 clothing banks with permission from landowners etc... Council sites, supermarkets etc. . .People who place clothing into banks are giving it away to be recycled or reused. The clothing banks will have the correct charity/recycling company image involved on. I cannot 'source' people, to give. These clothing banks work the same as they would anywhere, such as salvation army banks etc... . Do you understand the logic, It is hard on paper. But these are just recycling banks for people to recycled clothes, and aid charity. Hopefully this will help you on the four questions. Once they have been answered and I have got all my requirements lawfully, then I require a few more quick questions then full payment and feedback will be gratefully received!!!!, thanks!

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

To deal with your questions in turn:
1. It is important to consider then when you say the word licence you mean a right to enter and occupy someone elses land. It is not the same as a lease as the land owner wont give you exclusive possession of the property
A bare licence is one where you have the express or implied consent of a land owner to occupy their land for a purpose. It is not a contract in the sense that no valid consideration has been granted for it and it can be revoked at any time. The best example would be when you are invited into a persons home or go to a restaurant or the cinema et.
A contractual licence is one where consideration has been granted, you have a contractual right to enter the persons property and occupy it for a purpose. Consideration will be paid for example you will pay a licence fee to have the licence.

2. A contractual licence does not have to be on paper although for certainty it would be good to write it down. A contractual licence need only fulfill the requirements of a contract which are two parties with an intention to create legal relations and who have exchanged promises that count as valid consideration. For example the supermarket promises you access to place clothes banks on its property and in return you promise to pay a monthly licence fee of £1.00

3. If you agree with the supermarket a write to put clothes banks on their property in exchange for a licence fee this will be considered a contractual licence. If they charge you for the licence per tonne of clothes then this will also be valid consideration.

4. Consideration can be anything of value. For example £1.00, "a peppercorn" is the classic law school example, your promise to bring 100 customers a month to the supermarket.

I am happy to clarify or follow up on any of these points.

I look forward to hearing from you.

Kind regards

AJ

Customer: replied 2 years ago.

Hi. Thanks for the reply good information, but as I need specifics it would be good if you could answer some more questions regarding the points stated. Could you answer them in number format again.

 

1.)Is a contractual license purely were 'consideration' has been granted. i.e A payment per tonne of clothes/monthly fee or I could say 'I am bring more customers to the location'. Would both terms be considered 'consideration'.

 

2.)As mentioned previously I used to hand in a piece of paper which I now no would be a 'contract'. But this would of been of the 'bare' type because nothing was mentioned for payment/providing service. But it was on a supermarket car park maybe it was showing consideration by attracting customers? There was nothing in the 'contract' just stating that all health and safety, rules, law would be adhered to and the banks would be emptied frequently. This would be a bare license?

 

3.)I can go to a supermarket like previously, and hand in my own contract in for my own clothing banks. State that they will be recycled etc... This is a bare license?

 

4.)Do I need to put as a title 'Contractual' or 'bare' in any part of a 'contract'. Or mention it at all? Because wont the details of the proposed license change the outcome of the contract. Such as:-

  • Contractual 'providing free customers to location' (No fee for clothes)

 

  • Bare 'Place clothing bank on site for free'

... Both have meaning, but If it did not mentioned what type of license it is would this decide what license. If I wrote 'place clothing bank for free on site'. This would automatically mean it is a 'bare license'

 

5.)What happens If I say I am bring more customers to the site. Is this bare or contractual. Because even if it wasn't a contractual license. I would still be bringing more customers to site. Bare license is for purpose only this is showing consideration>? So it must be contractual??

 

6.)You mention contractual as a 'purpose'. But even a 'bare license' has still a purpose, for people to donate/recycle?

 

7.)A contractual licenses doesn't have to be on paper? But isn't this one the more 'legal' and more important?? To ...''Create legal intentions, exchanged promises etc... Is a bare licenses literally like 'spoken out of the mouth' not as official as contractual.

Do I not have to do all this with a bare license such as legal intentions etc.. Because I was probably going to hand in a bare license they give me permission to be on the land, but it would be in a contract format saying I own all the banks, emptied frequently etc..

 

8.)You mentioned consideration as 'value'. But I could be providing a service to aid recycling and bring more customers to site'. You use the example 100 customers a month. This would not be in the contract, because how can you get 100 customers a month? My contract would just state that 'The banks will provide more customers for the supermarket', that would be my consideration?

 

9.)I could have a contract saying I abide by health and safety . . ., empty the banks frequently. This would be a bare contract. It has no meaning. But I would state 'I would like to leave a clothing bank on this site, they belong to me for the purpose to help people recycled/donate. It has a purpose, but no consideration? Is it 'bare'.???

 

10.)Even if it was a bare license to place a textiles bank and I had a contract stating all health and safety, rules etc.. would be complied with. This this not be classed as consideration? Because the manager of the supermarket reads through the contract and signs it. Is this consideration because the manager has considered it and is reading through it and signed it. Or has the consideration got to be providing something to the supermarket.

 

Lastly ! What is my best license for me in my position i.e. supermarket. Would I be going to it with the intention of having a 'bare license'. On paper saying I have a free bank to help people recycle. Thank you, so much for your answers!!!! Just with wanting to make sure every single piece of information is just right. When dealing with supermarkets/land. Thank you, hopefully here from you soon!!

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

Dealing with your points in turn:
1. Consideration is just one part of a contract. By its nature a contractual licence is a contract. Therefore in being a contract it will have to fulfill the criteria for being a valid contract. Consideration is one of those criteria. Consideration must be valuable. So for example a licence fee would be valuable consideration, so would a promise to bring a certain number of customer each month. If you did not have consideration but still wanted a "contractual licence" then you could execute it as a deed and this would negate the need for any consideration.

2. I suppose this would be a bare licence. It has no definitive term and could be revoked at any time by the supermarket.

3. If you offer the the supermarket a written document promising to pay a licence fee in order to put the clothes banks in the car park that would be a contractual licence.

4.You do not need to write the words "bare" or "contractual". Which category it falls under is a matter of fact and construction. Again a document with a clear term i.e 6 months and an obligation to pay a licence fee is quite clearly a contractual licence. You just being told you can put the banks on the supermarket sites for free but this right could withdrawn at any time is a bare licence.

5.It would only then be a contractual licence if you had an obligation to bring more customers to the site in exchange for a set term over which you can place the bank at the supermarket. Other wise it is just a bare licence and as a matter of fact you are bringing more customers to the site. Just think - bare licence means it can be revoked at any time. Contractual licence means you are paying for the right or giving valid consideration for the right to put the banks on the supermarkets land for a set term.

6.The purpose is effectively an intention to create legal relations. I agree that with a bare licence you have a purpose for entering some ones property but it is not with the intention to create legal relations, that is the crucial test. If you agree a bare licence with the supermarket you are not creating a legal relation you are taking advantage of the supermarkets willingness to accommodate you, the downside of this as I have said is it can be revoked at any time.

7. In all likelihood the bare licence in this circumstance would be a supermarket sending you a letter saying you can occupy the land until they say otherwise.

8. I agree that could be consideration but it would have to be expressed as a value in a an agreement, and in return the supermarket would agree to give you a rolling licence with say 1 months notice. The protection would be that they would not be able to ask you to leave immediately.

9. If you send them a letter confirming you will comply with Health and Safety rules that is not a contract it is just a statement.

10. The contract would have to say - "In consideration for you complying with all health and safety legislation the supermarket will allow you to place your banks on the property for a term of 6 months".

You need a contractual licence. It will give you the certainty that it will not be revoked with immediate notice.

Please let me know if I can assist any further

Kind regards

AJ
Customer: replied 2 years ago.

Thanks for the info

 

So If i hand a document in to the manger of a supermarket like I used to and it stated that I wish to place a clothing bank on the site. This will help the communitiny recycle and generate funds for the charity. I 'james bankerrrrr' will own the banks and will comply with all health and safety law etc. . . . The banks will be place there for indefinatly. (I can write that they are going to be there infedinatly cant I?)
I dont mind having a bare license, as previously it worked fine and had no isseus. (This would be a bare license wouldnt it?)


2.)What happends if I write exactly the same thing as above but also write A royalty payment will be paid of £200 per tonne to the supermarket <This then becomes a 'contractual license' doesent it?

 

3.)Now to answer the other part of my question. As mentioned previosly on the tra website 'new code for members' it has 2 points regarding clothing banks and of which are law. You have given me my information for the first one '

Obtain a licence from the land owner (or appropriate site management organisation) to place a clothing textile bank at a particular named site'. You hare provided information regarding licensess etc.. But the other point which was mentioned was 'In the case of banks which are operated for the benefit of charities, contain solicitation statements that are compliant with the relevant legislation that is applicable in that particular nation of the UK where the banks are operated. Solicitation statements should indicate what the minimum amount of money per tonne collected that goes to charity is (For guidance on solicitation statements see Appendix 1).


Appendix 1 Listed below:-

England and Wales


The legal requirements of what should be contained within solicitation statements in England and Wales were originally contained within the 1992 Charities Act, which has now been amended by the 2006 Charities Act.
The Cabinet Office has produced guidance called "Charities Act 2006 - What Trustees need to know". The Charities Act 2006 applies in England and Wales. Under the Act an operator of a bank which raises funds for charities could be considered a Commercial Participator as can a door to door clothing and goods collector who passes on part of the proceeds from the sale of the collected goods to a named charity. This guidance states that solicitation statements from Commercial Participators must:

In carrying out a promotional activity for a charity, charities or charitable causes, for money or other property, commercial participators will need to indicate clearly:



  • which charities or charitable causes will benefit from the promotional venture;

 

  • if there is more than one institution, the proportions in which the institutions are respectively to benefit; and

 

  • how much of the proceeds from the promotional venture will go to the charity, charities or charitable cause(s), or give as accurate an estimate as is reasonably possible in the circumstances.

 


The full guidance can be viewed at:

http://webarchive.nationalarchives.gov.uk/20100304041448/http:/www.cabinetoffice.gov.uk/media/cabinetoffice/third_sector/assets/charities_act06_large_print.pdf

Do these bullet point even apply to me? Because this is 'appendix 1' and remember the 2 bullet points which is law, state that the banks should comply with solicitation statements? docs:- All docs look back for links and description


4.)So on my clothing banks the first bullet point simply means that what charity will benefit. Thats fine I understand this point, simple picture of the logo and the charity involved/commercial collector company

 

5.)It is the next bullet point )Second bullet point)

which I do not understand; 'If there is more than one institution, the proportions in which the institutions are respectively to benefit'. Currently the company I will be working for gives a set figure to charity each month and states this on the charity bags. Unless it is talking about the profit the company is achiving, putting bags out etc... But there has been no display on any clothing bank I have ever seen (20+) or ANY charity bag about this. If it is this I know of one bag which states 'please ring to find out more information on drivers pay etcc.' Could I state 'To find out more information on the company and how it makes profit please ring' (Company contact number). This would be legal? Instead of me putting how much the company makes because it is to complex, aswell as nooone else does it? What about me as a contractor/investor do I write how much i am earning aswell, but no Companies/collectors does this???? Obviously I would only do this if it was requierd, unless the second bullet point means how much is to the charity? Or nothing in my case, because there are no 'institutions'?

And obviously the last bullet point is stating how much will go to charity. That is a set figure so that can be printed on the bank.



6.) Also in the 'documents previosuly mentioned'. wrap.org etc... 'West midlands waste legal advice'. It says that clothing banks action can be taken against unfair commercial practices and for acts of fraud. This might include enforcement action where the physical appearance of a ‘bring bank' container has deliberately copied that of legally compliant competitor's containers inorder to confuse textile donators and gain a share of the textiles that would otherwise have been deposited in a competitor's container'



7.)When i used to empty clothing banks say they used to be blue. So i cannot copy a direct competitor? But surely I can keep blue but change the font of the text? Or colour of the text so it looks different? I was going to put it half blue, half red this would work? There are clothing banks that use the same colour because there are that many of them



8.)Also what about clothing bins? Small wheelie bins to collect clothes in. Same information on the bin as the bank would have, but how does it work say e.g at a school? Do i need once againe a license like above or not?

Thank you for your reply using the number system again.!!

Expert:  Alex J. replied 2 years ago.
Hi

Thank you.

1. A bare licence can be revoked at any time. It is not a contractual arrangement. What you have described is a bare licence because it can be revoked without notice;

2. Yes this would be valid consideration and potentially be a contractual licence, although you should insist on a notice period;

3. If you are not actually a Charity then no they wont apply to you. However you would need to make clear the banks are not being used for a charitably purpose. I thought you were collecting the clothes in order to recycle them?

4. This would only apply if you are carrying out a promotional activity for a charity;

5. It is not a illegal for a company to make a profit and give to Charity. You do not need to say how much profit you make just how much you actually to a charity and in what proportions. To resolve this problem you should consider setting up a charity thats purpose is to give to other charities, then you wont have to list every charity that this charity gives to.

6. The point is you are asking people to be donate their clothes to the bank. You have to therefore be open and honest. Not mislead people into thinking they are giving for one purpose when they are actually not. That is why you should describe it as recycling.

7.Copying would be what is known as passing. Passing off is when you ride on the back of another persons good will to take an unfair commercial advantage. If you bank is distinguishable from the other then I cant see who it would be copying.

8. Again you would need any land owners permission to place such an item on their property.

I am happy to assist further and any feedback is gratefully received.

Kind regards

AJ
Customer: replied 2 years ago.

Hi. Good information on points just need a few more questions and follow ups on previous questions:-

 

Remember I am recycling/reusing the clothes. If you look at the beginning of our case, I state that I am going to be working for a recycling company; which currently gives out charity bags and then collects them and reuses/recycles. The recycling company pays a royalty payment i.e £4000 a month to the charity, any excess is profit. With me working for the company each kg of clothes I get £. But instead of me putting bags out I am placing clothing banks. This is my example without any names etc...

 

I the individual have a contract with 'English textile bankers' which states that I own several clothing banks, they belong to me etc.. They are an identical to the charity bags given out on behalf of the company. All clothing generated goes to the warehouse were I will be paid £0.10/kg. The company then sells the clothes abroad for profit and providing the charity with £4000 a month.

 

So back to the previous questions:-(Maybe you thought there was no charity purpose) Just to recycle the clothes. The company recycles the clothes to make payment for the charity

 

Re answer Question 3) . . . . . . .

 

Re answer question 4, Also does 'promotional activity' cover me? I am not doing promotion, just have clothing banks?

 

Re answer Question 5 And also add this, As previously stated I have only ever seen mentioned on 1 clothing bank 100% to charity, the others nothing else mentioned. But the other day I was at the u.k's most common bank 'Salvation army' and it quoted 'Clothing bank donated items will be sold for reuse or recycled. Of the net proceeds 50% is retained by the salvation army trading company, the other 50% is donated to' . .

 

So in my case what would it be? With the example used above 'English textile bankers' will donate £4000 a month to the charity.... do I have to mention anything else??. .

 

I don't have to write how much I will receive i.e. Me the owner of the banks/contractor?? , I have never seen any bank do this. I can see that you have to write how much goes to charity, and how much goes to the company. It is the companys responsibility to pay there staff I,e me accordingly.

 

Remember the company does not do percentages, we give the charity a guaranteed income as they prefer this. And remember I own the banks as a individual (This will not have to be put on the banks?, (I will be putting the recycling company's for the address etc.. but all clothing goes straight to the recycling company etc. . . The banks will look exactly like the charity bags with all the relevant health and safety instructions, relevant licenses (As you explained before) etc.. Just that I am working on behalf for the recycling company like a contractor, and the recycling company is working on behalf of the charity

 

 

Re answer 7. Also this . . .I used to empty clothing banks which were lets say 'pink'. If I wanted my bank to be pink. I couldn't do this?? Because there are pink banks out there. But it would have all different information on? Such as the recycling company's logo, charity's logo, my solicitation statement 'The recycling company will give £4000 a month to the charity etc'....

 

8.) What about even if I changed the text, and colour of the text say. The back/rear of the bank is still pink. If 2 clothing banks are both pink next to each other what happends? Is this still not aloud? Although the public once they a facing forwards about to place textiles in the bank would see it is different as stated above.

 

(There are banks out there which use the same colours, they would have to because there are only a few colours)

 

(9.) If I had a bank which was half pink/half blue (2 different colours) then this would be distinguishable, even before text was applied?

 

Thank you, nearing the end of my information :)

Expert:  Alex J. replied 2 years ago.
Hi

Thank you.

I will deal with the points in turn:

Question 3 - actually you are what you would describe as an ethical company. You are not registered to charity but pay part of your profits to a charity. I do not think you can therefore pass yourself off as a charity.

Question 4 - I think promotional activity does cover you as you are collecting for a charitable purpose. Also surely it will be good publicity to state who you are donating to?

Question 5 - you do not know how much you are going to receive every month any way. Why don't you just describe the payment as it is, a guaranteed income is paid from your company to the following charities each month?

Question 7 - using a pink bank is not going to be passing off unless it is likely to cause confusion in how mind of the customer. You can say that the charity is your partner and a fixed guaranteed sum is paid to the chariot
Customer: replied 2 years ago.

Hi.

 

Questions 1) Yes, we are not a registered charity we are a ltd company and we help 3 other charities.

 

Questions 2) Reply back to your question 4, 'surely it will be good publicity to state who you are donating to'. Yes, as stated previously the banks will look excactly like the charity bag. Will be all pink say, have the correct charity numbers on, our recycling company image etc....

 

Questions 3. (Questions 3 answers will come from each bullet point below e.g 3a, 3b, 3c) Yes you are right in the fact we do not know how much we will be getting. Christmas time we will not get many clothes but the charity still gets paid ££££. You say why don't I just describe the payment as it is, the guaranteed income. Yes I will be doing this its just those 3 bullet points which were required by law:_(Which is why I do not want to get any of this wrong!)

 

In carrying out a promotional activity for a charity, charities or charitable causes, for money or other property, commercial participators will need to indicate clearly:

  • (3A)which charities or charitable causes will benefit from the promotional venture; (Easy put the charitys logo and our recycling companys right?)

 

  • (3B)The most important one!! if there is more than one institution, the proportions in which the institutions are respectively to benefit; This is the one as stated previously I was having trouble with. But as you mention we do not know how much we are going to make, do I just leave this point? And say we give a certain amount to charity££££(But this is the next bullet point).

(Would I also have to mentioned that any remainder is then sold for profit? Or would I not have to mention that.)

 

  • (3C) how much of the proceeds from the promotional venture will go to the charity, charities or charitable cause(s), or give as accurate an estimate as is reasonably possible in the circumstances. As mentioned on the previous bullet point, I will be putting this already. But that then means bullet point 2, I cannot write anything for this? Unless as stated I put the remained is sold for profit?

Question 4) This one is difficult for one. I am confused. Because you mentioned 'confusion' for the customer. But what is that? I stated previously that if 2 pink banks are beside each other is this confusion:????

"Action can be taken against unfair commercial practices and for acts of fraud. This might include enforcement action where the physical appearance of a ‘bring bank' container has deliberately copied that of legally compliant competitor's containers in order to confuse textile donators and gain a share of the textiles that would otherwise have been deposited in a competitor's container."

 

Even though they are both pink say, my bank will have ALL different logo,s, different charity, numbers, say but this isn't 'deliberately copying' because I have the same colour? Obviously on some sites they are different colours or there are no banks at all. I am just thinking of some sites were we have the same bank design/ colour but when facing the bank it is obviously different. Customers can tell.?????????????????? As stated the banks will look like the charitys bags. So our recycling company logo, charity logo, statements saying we give the charity ££££ and health and safety etc.. Contact numbers, charity numbers etc.. Are on it, this is different to other competitors.

 

Thank you

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.
Question 1 - If you are limited company carrying out a promotional activity for charitable purposes then you should include details of the giving on the bins.

Question 2 - Thank you - I note this point can I assist any further on this?

Question 3 - In relation to point 3B - why dont you consider putting on the sign - "information as to how much money is donated and to which charities is available on our website?"
Point 3C - I dont think you need to say what part is sold for profit, you just need to give an approximation of what profits are paid to charity.

Question 4- Confusion in this circumstance means is there a likelihood that there will be confusion as to the origin of the bins? Or despite being pink are they so clearly labelled that this is unlikely? If you are deliberately riding on the back of a competitor's goodwill this would be an unfair practice. It would not be fraud as you are actually giving money to charity.
If the customer can tell they are different then this wont necessarily be considered passing off.

I look forward to hearing from you.

Any feedback is gratefully received.

Kind regards

AJ



Customer: replied 2 years ago.

Hi. I am not sure if they recycling company is

A commercial partnership or a professional fundraiser? It has 3 charities all of which get a set amount on the textiles coming in. Regardless of amount. It is a ltd company just like all commercial partners.

 

The terms:-

Professional fundraisers:

In appealing on behalf of a charity,

charities or charitable cause for money or other property,

professional fundraisers will need to indicate clearly:

  • for whom they are fundraising;
  • if there is more than one institution, the proportions in which
  • the institutions are respectively to benefit;
  • how payment to them is calculated; and
  • how much they will be paid in connection with the appeal, or as accurate an estimate as is reasonably possible in the circumstances.

Commercial participators:

 

In carrying out a promotional activity for a charity, charities or charitable causes, for money or other property, commercial participators will need to indicate clearly:

  • which charities or charitable causes will benefit from the promotional venture;
  • if there is more than one institution, the proportions in which the institutions are respectively to benefit; and
  • how much of the proceeds from the promotional venture will go to the charity, charities or charitable cause(s), or give as accurate an estimate as is reasonably possible in the circumstances.

Question 1 .)This was taken from the docs provided (charities act 2006), I think the recycling company is a commercial partner?. Because on the tra under textiles banks (Explained previously) it has 2 terms which are required by law. One for a license for the banks and the other to show solication statements which are what the 3 bullet points listed above show, a 'commercial partnership' .

 

Question 2) So once againe I will review the following points feel free to add any comments each is correct/incorrect

 

2a)One the first bullet point on solication statements it states "which charities or charitable causes will benefit from the promotional venture".

This is easy show the charities logo along with the fundraising standards tick and there charity number. Correct, sorted??

 

2b)"if there is more than one institution, the proportions in which the institutions are respectively to benefit". As you stated previously the recycling company does not no how much it is going to make, so I will state that the recycling company gives ££££ a month to the chosen charity (The charity in which the main purpose of the textile bank is for, it is livered in the design etc...) Therefore that this question in now answered, as the 'institution' (being the recycling company?)does not no how much it is going to benefit/loose. However I will also write after how much we give to charity, that details on our profits and were/how the clothes are recycled/reused is available on our website or alternative ring 080034344653653 etc.. This would be better? As this gives even more clarity, and is perfectly legal? Not only is this stating the charity's amount but giving details on our profits, and how we recycled clothes etc....?

 

2c)"how much of the proceeds from the promotional venture will go to the charity, charities or charitable cause(s), or give as accurate an estimate as is reasonably possible in the circumstance". This is easy, as I have already mentioned. "I will put the recycling company gives ££££ to the charity ever month from the sale of the clothes". In this case it is allways guaranteed, not even an estimation.

 

3)Reply back to your previous question 4.

Yes that great, its clairified a lot. So even if say I have a 2 pinks banks next to each other. When the customer is looking at them, mine has all different stickers, logo's, etc... It is not classed as copying.

 

But what I don't get is when they state has "deliberately copied that of legally compliant competitor's containers in order to confuse textile donators and gain a share of the textiles". How do you do this then?? But how does this differ to, 2 pink textiles banks>??

Does this mean without the labels? Literally 2 pink banks that Is copying

 

4.)I will be putting the charities number as in solicitation statements the first bullet point states that 'which charity will benefit', so I will be putting the charities registered number to be safe etc... When I put the recycling company's logo (Although nothing states that I have to put this), should I also put there registered company number ??

 

Thank you very much for all your help.

 

This is great info, as dealing with supermarkets, councils etc.. Want to get any info 100% correct! Thanks. We are nearing the end of the questions:

 

 

 

 

 

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

Question 1 - Yes I would agree it counts as a commercial partner. At the end of the day it is a commercial enterprise that makes a profit. The charitable element is incidental to the ultimate aim of the company and the company benefits from the publicity and goodwill created by the same.

Question 2 -
2a - Yes that will suffice as you can identify the charity involved.
2b - I would consider making this information available on your website or place of business. This information could be reported on an annual basis once you have finalized your accounts for the year. What I would do is speak to the Charities Commission and say that you do not know how much money you will be giving away each year until your accounts are finalised. You can say that you want to commit to giving away "X" % of your profits each year, is it therefore sufficient to place this information on your website or place of business. I think as it uses the words "indicate clearly" this can be construed that if you direct people where to find the information and the information is accurate then you will comply with the rule. The safest thing to do is to get approval from the Charities Commission who are able to offer legal advice,
2c - Agreed again this information could be made available on your website or place of business.

Question 3 - Does the competitor bank have a history with using the colour, is it the only charity that does so? If in using the colour pink you cannot avoid the confusion if the two clothes banks were set side by side then you should not use pink as the colour, or use a different shade of pink at the very least.

Question 4 - Yes I would put in the small print the company number and registered office. Technically the bin is a place of business and therefore under Trading Disclosure rules you must make the company name number and registered office available - even if it is only in small print http://www.companieshouse.gov.uk/infoAndGuide/faq/tradingDisclosures.shtml

Kind regards

AJ
Customer: replied 2 years ago.
Hi. I have been busy today so with get back to you tomorrow with few more light questions, I have emailed the charity commission and the fundraising standards board about displaying the amount. very soon I will be finished. Once againe, I will email back tomorrow pm. Thank you.
Expert:  Alex J. replied 2 years ago.
Hi

Thank you.

No problem. Please get back to me at your convenience.

I would be grateful if you could provide some feedback on my answers, i am happy to continue the thread.

Kind regards

AJ
Customer: replied 2 years ago.

Hi

 

(Replying back to your previous question 2b) For ease all question below go from here 2b, 2c. 2d etc..)

2b)Remember i work for the recycling company as a contractor/worker. I do not own the company. But unusually I will be OWNING the banks. For to take the textiles to the warehouse, but the charity is listed on the banks. E.g The company has allways give £5000 a month to the charity . Never more, never less, regardless of there profits etc . . You mentioned you dont no how much the company is going to give, but the company does not give a percentage of its profits etc.. It is a fixed amount every month, regardless of clothes income.

 

 

2c)Remember that whatever was on the charity bag that is given out for the charity must be correct. It has been passed by the fundraising boards and has the tick of approval and of the whole system. And all that was on the current charity bag was the reycling company logo, the charity, the chaitys number, the recycling companys adress and number. Nothing about how much is given to the company? Remember the whole point of this questions is(Second bullet point in solication statements)

"if there is more than one institution, the proportions in which the institutions are respectively to benefit". Because the company does not know how much profit or any income it will make from the textiles at any time because of the variability of the clothes coming in, an amount could not be viable? But on the salvation army's clothing banks, who are the u.k's leading clothing bank operator. They had one situated in a supermarket car park saying in small print


"Donated items will be made available for sale in salvation army trading company's
nationwide chain of charity shops with the remaining donations being sold for
re use or recycling. Of the net proceeds 50% is retained by Salvation Army
trading company ltd. The remaining 50% is donated to the cooperative charity
etc...'

This is basically the second bullet point solicitation statement. They are showing how much the 'institution' (being the trading company) will keep. As well as how much the charity will earn/benefit, which is the third bullet point law. As stated previously the company I will be placing the banks for does not give percentages, could this be viable (Below)

 

"Donated items will be reused/recycled of the proceeds £5000 a month will go to (Charities name) and any remainder is retained by (The recycling company's name"). This states what the clothes will be used for. It also says that after the £5000 a month paid to the charity, the recycling company retains. This could be my second bullet point in solicitation statement. Also I mention the amount going to charity so this is my 3rd bullet point in solicitation statement.?

 

2D)(Reply back to your pink clothing bank answer) If I wanted my bank pink, yes there is a competitor who does use pink but are only at a limited number of sites were mine will be located. They have allways used pink, and is the only bank that I have ever seen/lots of info that is pink. But this is were we keep coming full circle. "If in using the colour pink you cannot avoid the confusion if the two clothes banks were set side by side then you should not use pink as the colour". That is what I want to know, how can confusion be avoided if they were beside each other? They either can, or they cant? How can it be avoided? Obviously say they are both pink. But, they show different logo's, info on this is different? Remember "Enforcement action can be taken were the bank has deliberately copied that of a competitor?

 

2E)Even if I couldn't then say put them all pink. Could I put them all pink at sites were the other charity does not have them? Or would it still apply, because the public are misconstrued in thinking one is the other

 

2f)If then I put the banks 66% pink, 33% blue, this is ok? No one has banks like that. And you can tell they are different even when they are next to each other; would this be legally acceptable?

And wouldn't cause conflict because the bank is different, different colour (Although it still uses pink but one third is blue) Different stickers, logos, info etc..

 

I have also written to the charity commissioner about this and are awaiting reply. Thank you for your help with the last of the questions (just clarifying info really), full acceptance will be given within a few days :)




 

Nothing about proportions, you would be right about writing we give x amount and guiding people to the website etc.. But as stated we dont give a percentage its allways the set amount every month. But i will clarify that with the charitys commison.

.

Customer: replied 2 years ago.

Hi, Alex.

 

I must have ran out of time? Because you are no longer replying?

 

I don't mind accepting because you have helped me a lot; but I just need some more info to finish me off.

 

If I accept fully, can I reply back to you. (You said you would keep the thread open?

 

If so for how long do I get,

 

Thanks, awaiting reply asap.

Expert:  Alex J. replied 2 years ago.
Hi,

My apologies I have been away since the 25 January and this did not appear on my question list.

I am happy to continue assisting you.

Can you give me until tomorrow morning and I will answer your questions?

I would be most grateful for any feedback when you are ready.

Kind regards

AJ


Expert:  Alex J. replied 2 years ago.
Hi,

Thank you for your patience:

2b) If you own the banks why dont you licence them to the company and include as a condition of that licence that they are liable to comply with any regulation and charitable regulation? That way the liability wont fall on you personally.

2c) Should you not say this is a minimum guaranteed sum. I do not think you need to say the remained of X goes to the recycling company. I think the point is you are paying £5,000 per month to charity full stop, this is regardless of how much is collected. This is therefore the point that must be made clear.

2D) I am afraid this is such a hypothetical question because it comes down to a matter of fact in terms of passing and trade mark infringement. It is the individual prerogative to enforce these rights and therefore the burden of proof is on them to show that they are having their good will being un fairly taken advantage of in the eyes of the customer. The only way to know this for certain is if it is the subject to a court order. Ultimately if your bin is pink as well and it is easily distinguishable i.e pink is not its distinguishing feature then you hopefully wont be causing confusion in the eye of the consumer.

2E) Yes you could do this but as long as it was obviously clear they had nothing to do with the other charity.

2F) There would be nothing wrong with having multiple colored bins but again can they be distinguished is it obvious that the origin of those bins is different to the competitor?

Kind regards

AJ

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