Redwood Tree Services Ltd v Warren Apsey t/a Redwood Tree Surgeons, [2011] EWPCC 14, HHJ Birss QC, 13 May 2011
The claimant has succeeded in a passing off action between two small and local treesurgery businesses.
The claimant, Redwood Tree Services Ltd, was a tree-surgery and forestry business based in Bisley in Surrey, which traded as "Redwood Tree Services". The defendant, Warren Apsey, also had a tree surgery business. He traded as "Redwood Tree Surgeons" and was based ten miles from Bisley. The businesses had both traded since 2004.
The claimant commenced an action for passing off against the defendant.
The court held that the defendant was passing off his business as the claimant's, although its rights were local and confined to a particular area around Guildford.
The judge said that the claimant's tree-surgery business had small goodwill, highly localised in the Guildford area, which was at the lower limit of the difference between trivial and small (applying Sutherland v V2 Music [2002] EMLR 28).
The principal issue in relation to misrepresentation was the parties' six and a half years of parallel trading.
The judge said that the key to the case was the juxtaposition of the name and the location. The claimant did have goodwill in its local area around Guildford which broadly corresponded to the GU and SL postcodes. If the defendant traded in the claimant's home area he made a misrepresentation; the use of the name "Redwood Tree Surgeons", whether intentional or not, would lead or was likely to lead the public to believe that goods or services offered by his business were those of the claimant's business.
As the claimant's rights were local, the judge held that the only injunction which would be appropriate was one specifically limited to the GU, SL and KT postcodes areas.
The judge said that provided the defendant's website made it clear that it was not based and did not trade in the GU or SL postcode areas, he would not grant an injunction which prohibited such a website. It was appropriate for the defendant's website to include a reference to the judgment for six months.
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