Herbies guides BSkyB to telesales victory

Herbert Smith has won a notable passing off battle in the High Court today (11 December) for key client BSkyB.

The case is believed to be the first in the UK to consider the misselling of goods or services through call centre telemarketing.

It centred on the use of the Sky name by Satellite Direct and other defendants. The companies were found guilty of the unauthorised selling of service plans and warranties for satellite reception equipment using the “Sky” name.

Herbert Smith partner Joel Smith said the case had wider implications for any industry that employed the use of call centres for telesales.

“It was also very significant for Sky,” said Smith. “The call centre was making six million calls a year to a customer base of 450,000.”

Smith said Sky would be entitled to damages on 80 per cent of sales up until the middle of 2005, “which could potentially run to millions of pounds.”

Mr Justice Michael Briggs found that both groups of defendants had passed themselves off as Sky, or as authorised or endorsed by Sky. He concluded that Satellite Direct intended, through the marketing strategy put in place, to suggest a connection with Sky and intimate a current relationship with the customer to create a bond of trust. It set out deliberately to exploit “grey areas”, he said, for economic gain.

Smith was instructed by the head of Sky’s IP team Simon MacLennan, with Tom Moody-Stuart of 8 New Square appearing in the High Court.
DMH Stallard head of dispute resoluution Tim Ashdown and partner Sarah Birkbeck advised Satellite Direct, instructing Guy Burkhill QC of 3 New Square.