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Jenny
Jenny, Solicitor
Category: Law
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Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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The husband of an employee who worked in a business I owned

Resolved Question:

The husband of an employee who worked for me in a business I owned that traded as a legal partnership called the Jolly Good Food Company which was closed in 2009 has set up a business with an identical name in the same village selling food the same as I did.They have not apporached us where do we stand please? Is this passing off? Kind Regards,Jenny Connick
Submitted: 12 months ago.
Category: Law
Expert:  Jenny replied 12 months ago.

Hello my name is ***** ***** I am happy to help you today. Does your business still trade and will you suffer any loss as a result of this?

Customer: replied 12 months ago.
My business does not trade currently but it does not mean I would not in the future. The business was well known in the small village where the new company has been set up so there was a reputation.
Expert:  Jenny replied 12 months ago.

Did your business run as a limited company?

Expert:  Jenny replied 12 months ago.

If the ex employees business is being run in the same name and is relying on goodwill generated by your business then you can argue it amounts to passing off. The difficulty , insofar as bringing a claim is concerned, is that the goodwill should be current. The fact that your business has not traded since 2009 may well therefore cause you a problem insofar as damages are concerned, if it can be proved that the goodwill was 'abandoned' by the closure of the business in 2009 a claim would fail. It is not fatal though in the event it was a temporary cessation, this will be the case especially if the ex employee was aware that you were going to set back up. This would be a matter of evidence for a court to determine if it came to litigation.

From a practical point of view, in the first instance, you should send a letter before action asking them to stop trading under this name and saying if they do not you will take legal action. This will be easier to do if you traded as a sole trader.

If you have any further questions please do ask.

Jenny and other Law Specialists are ready to help you
Customer: replied 12 months ago.
Thank you Jenny that was helpful
Expert:  Jenny replied 12 months ago.

No problem all the best.