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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3495
Experience:  Solicitors 2 years plus PQE
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we are a small domiciliary care agency in Shropshire called

Customer Question

we are a small domiciliary care agency in Shropshire called Care4All Ltd. We were registered in 2007. Recently we became aware that there is another company, based in Grimsby which is calling itself Care4all, and operating in the same area of business as ourselves. I have written and spoken to this company and told them that they are operating under our name and that they should stop doing so - they have opened up business accounts in the name Care4all and traders think it is us - we have also had prospective staff contact them rather than us, and I am worried that if they do anything wrong and attract bad publicity (particularly as we are both in the care industry which is very much under the media spotlight) then it will ruin our own reputation. What could I do to stop them continuing to trade under our name ?
Submitted: 2 years ago.
Category: Law
Expert:  Alex J. replied 2 years ago.
Hi,
Thank you for your question and welcome.
My name is ***** ***** I will assist you.
Do you have a Trade Mark in Care4All?
Also have you lost business or custom to this company?
Kind regards
AJ
Customer: replied 2 years ago.

Hello AJ

we don't have a trade mark in the name as such - we have a logo. As far as lost business is concerned, we do operate in other areas so it is most unlikely that we would lose any business in our trading area of Shropshire. As far as losing business/custom is concerned, I cannot say, but we do know that prospective staff have tried to contact us and in fact ended up contacting them as they have ensured that their name is ***** ***** to appear on Google if you put the name Care4All into the search engine. The staff who finally got in touch with us have commented that they had difficulty when they in fact talked to them as the response was very unprofessional. It may be that there have been a number of occasions in which prospective staff have tried to contact us but given up altogether because they in fact contacted them, if you see what I mean.

However, the main concern is with our overall reputation and the regulator the Care Quality Commission. As I am sure you are aware, the Care industry is constantly under considerable scrutiny and our reputation is of primary importance to us. All care agencies are investigated by the CQC annually and they produce a report on our operations. The CQC publish their reports on their website which can be accessed by anyone at any time, and of course they have the right to make criticism of operation and also to issue warnings and closure orders in extreme cases. We have scored excellent ratings for the last 7 years and are extremely proud and jealous of our reputation - it is, after all, the only thing that we can trade on in this industry. However, the other Care4all have not yet been investigated and no report has yet appears from the CQC. I am extremely concerned that if the CQC were to produce an adverse report on them - either now, or at any time in the future - this would adversely affect our business because in the minds of prospective patients we would be associated with the other company. It would also follow that if the other Care4all were involved in any disciplinary or even criminal investigation by the CQC or the Police, it would again adversely affect our reputation. Also, because the other Care4all have, to our knowledge now opened up business trading accounts in the name Care4all, then again, by association, we might become involved if they adversely operated those accounts, either by default of payment or other commercial activity.

Richard Westwood-Brookes

Expert:  Alex J. replied 2 years ago.
Hi
Thank you.
I will need to go and write a response and explain the laws of passing, this may take me a little while so please do not be concerned if you do not hear from me right away, I will respond by 10am tomorrow at the latest.
Kind regards
AJ
Customer: replied 2 years ago.

Many thanks AJ

Any response will be most welcome and don't feel that we are requiring any answer desperately - I am most grateful that you have been so helpful.

Best

Richard Westwood-Brookes

Care4All Ltd

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
Kind regards
AJ
Expert:  Alex J. replied 2 years ago.
Hi,
Thank you for your patience.
I will summarise the position below:
1. The Law:
- This potentially falls under the Law of Passing Off;
- Passing off occurs where one person takes an unfair commercial advantage riding on the back of the reputation and good will of another party.
2. The Facts
- If you have a prior trading history and good will in the name Care4All then you may potentially have a claim for passing off;
- Clearly this other company is trading in the same geographical area using a similar name and is therefore taking advantage of your goodwill and potentially damaging it.
3. Remedy -
- The main way to deal with this would be to go to court and get an injunction and sue them for any damage caused;
- That said the above option is expensive and the fact that they have said they are willing may be in part consider ceasing using the name then other action should be considered first;
- I think it is important to let this company know you have been properly advised and you are aware of your rights - this really does involve sending a letter from a solicitor - having the letter on the headed paper of a solicitor gives it the added gravitas that you are serious about any proposed action;
- I would recommend that you get a solicitor to send a cease & desist notice and demand the delivery up of any clients they have contacted in that name - the letter should say that if they do not agree to do it by a set dead line you will reserve the right to seek injunctive relief and damages.
Have you contacted your regulator and notified them of this other company?
Kind regards
AJ
Customer: replied 2 years ago.

Dear A J

Thank you so much for your advice. I haven't contacted the CQC as yet but I agree that it is a very important step.

Best

Richard Westwood-Brookes

Care4All Ltd

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
I think you must contact the regulator and put them on notice that some is trying to pass themselves off under your name.
This lays down a marker in case there is any complaint in the future.
I think a solicitors letter to the company is the best way to go - if this company is new it is probably not asset or cash rich and therefore you may struggle to recover any expensive costs from them.
Kind regards
AJ

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