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Monday, 11 July 2011

Dealing with scams

One of the banes of business life is the spurious but official-looking document that can so easily be signed and sent back - resulting in a claim that you now owe someone money for something you didn't realise you'd ordered. Back in the days when I worked at the CBI - the mid-eighties - it was directories: you thought you were verifying the information they claimed they were going to put in the directory (which would rarely ever get as far as being printed), but in fact you were signing an order for a very expensive entry. More recently, it's been dodgy data protection registration people, offering to attend to the simple matter of notifying the Information Commissioner's Office about your data processing activities for a substantial fee. In recent years there has been a boom in trade mark registration and renewal scams.

If you get any communication about a registered trade mark, treat it with caution. Especially if your trade marks are handled by a professional representative - if they are, all official communications should go to them, not to you. Before paying anything, consult your adviser.

There are plenty of other scams of various sorts going on apart from these. Documents come through the post, or by email, looking like something other than what they really are. We used to hope that the Unsolicited Goods and Services Act 1971 would help, and at least the contract would be unenforceable - but it's not in the scammers' business plans to get involved in legal proceedings, so we never got confirmation.

Now, the Business Protection from Misleading Marketing Regulations 2008 might be of assistance - especially following an unreported judgment of Mackie J in the High Court, in London Borough of Croydon v Austin Hogarth [2011] EWHC 1126 (QB), 5 April 2011 (unreported and not available on BAILII: thanks to the IPKat for drawing it to my attention). It involved what appeared to be a renewal form for a computer maintenance agreement which didn't actually exist. The judge decided they fell within the broad definition of "advertising" in the Regulations ("any form of representation which is made in connection with a trade, business, craft or profession in order to promote the supply or transfer of a product") and they were deceptive because they weren't what they were made to look like. The judge dismissed Mr Hogarth's explanation:
Mr. Hogarth denies that the agreement looks like an invoice. He says it does not. He says it states quite clearly at the top in big letters “Business Equipment Maintenance Agreement”, and that there is no way it can be mistaken for an invoice. He also says that it is misleading to rely upon: “If you would kindly fill in the number of machines on the enclosed document in the space marked with a cross, sign it and return to us within the next 5 days” bearing in mind the sentence before that. He points to other features which he says are likely to indicate that this is nothing more than, what he says it is, an invitation to enter into the contract. The question is whether that is misleading. In my judgment, it plainly is misleading. One must look at this in the context of apparently routine documents received during busy commercial life. The document appears to be one thing and is something quite different. That is an impression formed by the complainants, by the witnesses in this case, by the Advertising Standards Authority and by the OFT. It is not surprising that people have formed that view because, as I see it, it is blindingly obvious to anyone who has had any business experience that, when receiving a document of that kind, you would, unless you have checked it very carefully, take it to be something which it is not. You would sign a new contract thinking you were dealing with an existing company. The structure of the scheme was designed to mislead. There is no genuine commercial reason for the mailing to take the form it did. So, in my judgment, the communication is one that plainly deceives or is likely to deceive.
That, it seems, could cover a huge range of dodgy documents. It's no substitute for reading it carefully - but the whole point is, that's not always possible.

The Regulations don't give rise to a right to damages, only creating criminal offences - but if the contract be tainted with illegality, a civil claim should be possible.

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