Case No. IP-2016-000182

Goodwill 81.Passing off was to be assessed as of the date on which Forces Mutual began trading. It was common ground that this was on 20 April 2016.82.MML argued that in April 2016 the relevant public recognised the term ‘mutual’, when used in the context of financial organisations, both to be distinctive and to denote a type of financial organisation, namely one solely owned by at least some of its customers. The status of being a mutual was perceived to confer advantages for its customers when compared to non-mutual organisations. Therefore there existed goodwill in the businesses of financial mutuals, shared by the organisations running those businesses, which goodwill was associated with the term ‘mutual’.83.By April 2016 MML had been trading for year and had advertised its business among the armed forces on a substantial scale. It was owned and controlled by its customers and was therefore a mutual within the meaning recognised by the relevant public. It promoted itself as such. By that date it shared in the goodwill of financial organisations associated with ‘mutual’. Misrepresentation 84.The misrepresentation relied on was generated by Forces Mutual’s use of the term ‘mutual’ in their trading name. MML argued that Forces Mutual are not mutuals as that term was recognised by the relevant public in April 2016. The reason was that although PMAS itself is a mutual, its subsidiaries trading as Forces Mutual are not. They do not offer products which confer on the purchaser membership and part ownership of PMAS or any other organisation. They are not owned and controlled by their customers for the benefit of their customers. By trading as a mutual Forces Mutual make a false representation. Damage 85.Forces Mutual’s misrepresentation has gained them business at the expense of MML. Styling themselves a mutual has also diluted and therefore damaged the collective goodwill associated with ‘mutual’.