The Menu Store
Complaint 363108 Details

The Menu Store - FAKE - PASSING OFF

The following account is a study of 2 UK businesses. Here you'll see how the original company falls victim to the fake, mock business, The Menu Store – http://www.themenustore.co.uk

Passing off is not an inevitable part of trading in the modern day. There's a huge difference between healthy competition of similar products/services and blatant misrepresentation. As you read through this case, keep the following in mind:

It's never okay to sell your own products or services under the pretense that they're the products or services of another person or company. To do so will have consequences.

Passing off is an Intellectual Property Law that's in place for the most part to protect traders. This protection is there to safeguard personal and commercial reputation. It also protects misleading practices, and subsequent damages caused by any of the above.

The Menu Shop (A) - Vs - The Menu Store (B)
The case study deals primarily with the recent incorporation of company (B) The Menu Store Ltd, Registered in England and Wales under company number: 10495106.

Registered office address recorded at: Grove House, 8 St. Julian's Friars, Shrewsbury, England, SY1 1XL.

Directors recorded at Companies House:

Simon Craig McCloy of 133 The Mount, Shrewsbury, Shropshire, England, SY3 8PG

&

Sian Leigh Hemmings of Grove House, 8 St. Julian's Friars, Shrewsbury, England, SY1 1XL, also given above as the primary trading address.

This case study highlights a classic situation of a blatant and undeniable case of Passing Off. This is by no means a unique case. But it does draw attention to the flagrant disregard the person or people behind company-B (mock) have over company-A (original). It is therefore a good example to illustrate the problems associated with passing off.

Let' start by looking at Company-A's passing off claim.
The Menu Shop is a well-established online and bricks & mortar business based in Warminster, Wiltshire. The company owners have invested in their concern and grown it over a good many years. It's an enterprise that specializes in the manufacture and supply of unique projects to the hospitality industry.

Company-A has to stay driven so that they can maintain their position as a market leader. They continue to invest time, money, and effort into developing new designs and product ranges. They also commit to producing bespoke items at the customer request.
Over the years, The Menu Shop has enjoyed a healthy—and expanding—customer base. This has been thanks to their commitment to the business, continual innovation, and steady growth. In short, they have earned a reputation for excellence in their product ranges.

Competition is not the issue when it comes to common law tort. Healthy competition is a good thing for both business and consumers alike. It leads to innovation, improved customer service, and shakes off any complacency. It also makes goods or services more competitively priced.

The Problem with The Menu Store (Company-B)
The Menu Store indirectly mirrors everything that The Menu Shop has spent years building. Let us look at the three points needed to make a successful Passing Off Claim: Goodwill, Misrepresentation, and Damage(s).

#1 Goodwill
The whole concept of the goodwill aspect, and proving damage of goodwill, is central to a successful claim against the defendant. If the copy site, ‘The Menu Store Ltd’ (company-B) sells inferior products or provides sub-standard services, compared to Company-A, there is harm to the latter's goodwill. It is because the company has built its reputation on the goods and services it provides, therefore, there is goodwill attached to that name. Goodwill is never easy to prove, but it's easier once you can link the good name of a person, a company, or both, to the claim. This will include an association to any advantages, benefits, connections, and overall reputation of the business. In this case, proving becomes easier due to the longstanding good reputation of the business operation and the business owners of The Menu Shop Vs The Menu Store.

#2 Misrepresentation
In this case the website is not a direct clone. Despite this, ‘The Menu Store’ still attempts to piggyback off the success of company-A through similarity. There is misrepresentation because they have no actual association with company-A, yet try to give the impression they're one and the same. Fact is that they are not! Through their dishonest practice they cause confusion and deception to consumers and as such are legally accountable for such action. This is what has the potential to harm the original company. The Menu Store Ltd have moved a few things around on their website, found here: www.themenustore.co.uk and reworded some of the content and items differently, even so, it's the same message and products—or bogus products—for sale.

The difference is that Company-A, The Menu Shop, is the real deal, original long-standing company, whereas company-B, The Menu Store Ltd is a recent copycat outfit. They've setup business in an unethical manner and in a way to make unsuspecting shoppers think they're the long-established Company-A. Or at least their operation looks so familiar that it's easy for the uninitiated to assume it's the same outfit, of part there of.

#3 Damage
People who search for company-A (The Menu Shop) may fall upon Company-B (The Menu Store), either through misleading advertising or via internet search terms, social media or through referral resulting in returning one of the aforementioned search results that confuses the consumer due to the copying of name and brand. If a consumer makes a purchase from The Menu Store, and is letdown by them, either with products, services, or both, it can reflect badly on Company-A. In such cases, there could be accidental damage to reputation, the bottom line, and even health, depending on the extent of the harm.

#4 Less Obvious Differences
Most unsuspecting shoppers would easily overlook any differences between The Menu Shop (Company-A) and The Menu Store (Company-B). Upon closer inspection though, and with a certain amount of basic and readily available due diligence, they would see a plethora or irregularities. It is clear from these observations that The Menu Store Ltd is in violation of passing off as The Menu Shop.

The Challenges of Passing Off
Passing off is a term associated with a common law tort. A tort is any deliberate violation or unlawful act against the rights of an individual, company or organization. These are wrongful acts that often result—or have the potential to result—in a negative outcome for the innocent party. So accountability in the tort of passing off simply boils down to deliberate misrepresentation. The origins of passing off first came about in the 17th century. It began with two cases: Dean vs. Steel and Southern vs. How. The judge back then classified these early torts under deceit and defamation.