The UK’s Company Names Tribunal - objecting to abusive company names in the UK

The Company Names Tribunal (“CNT”) is a UK tribunal set up to enforce Section 69 of the UK’s Companies Act. It is operated by the UKIPO and allows brand owners to seek a change the name of a UK company which incorporates the identical or highly similar brand where the “company name is registered for the primary purpose of preventing someone else with legitimate interest from registering it, or demanding payment from them to release it”. In some senses, the CNT is therefore akin to UDPR systems offered by domain name registrars which allow brand owners to take action against abusive domain name registrations.

Because of its relatively low cost (the official fees for a complaint are £400), the CNT has proved to be a very attractive option for brand owners when confronted with new abusive company name registrations in the UK. Many complaints filed at the UKIPO are undefended and, in that case, the UKIPO will issue orders against the UK company and its controlling shareholders to change the name to something which does not reflect the brand owner’s mark. If that order is not acted upon in time by the UK company, the UKIPO will then unilaterally change the company name to reflect the registered number of the company, e.g. 1234567 Limited. The UKIPO also recently decided that complaints can be filed retroactively against UK company names which had been registered before the CNT was established in October 2008.

There are potential defences to a complaint filed by a brand owner at the UKIPO as follows:

• that the name was registered before the start of the activities on which the applicant relies to show it has goodwill/reputation;
• that the name was registered in the ordinary course of a company formation business and the company name is available for sale to the applicant on the standard terms of that business (an ‘off the shelf company’);
• that the name was adopted in good faith; and
• that the interests of the applicant are not adversely affected to any significant extent

However, a number of changes have recently been made to Section 69 of the Companies Act which make the CNT system more favourable to brand owners.

Those changes are as follows:

• Section 69(1)(b) has been amended so that consideration of similarity between the applicant’s name (in which he has goodwill) and the registered company name is extended to use outside of the United Kingdom, where such use would likely mislead members of the public outside the United Kingdom;
• Section 69(3) has been amended so that persons who were members or directors of the registered company at the time at which the name was registered may, in addition to existing directors, be joined as respondents; and
• The defence under Section 69(4)(b) has been repealed in its entirety. This means that a defendant will no longer be able to defend the challenge against its registered company name on the basis that (i) it is operating under the name, (ii) it is proposing to do so and has incurred substantial start-up costs in preparation, or (iii) it was formerly operating under the name and is now dormant.

The first change is particularly welcome, as it is clear that many UK company names have been registered in the UK in recent years with a view to that company name registration being used in trade in other jurisdictions where the brand owner has goodwill. The third change is also extremely useful as some defendants in the past would simply concoct evidence of use or intended use in order to try to foil, or at least delay, a complaint. Another benefit of that change is that it makes it easier to approach the UK company (a necessary step to secure a cost award before the CNT) before filing a complaint without the fear that the approach will prompt the UK company into taking action to put the name into use, again with the intention of foiling the proposed complaint.

In summary, the CNT is a useful tool for brand owners to take relatively inexpensive action against abusive UK company names and is even more so in the light of the recent changes. Over the years, we have several successful complaints on behalf of our clients before the CNT and would be pleased to advise you or your clients in relation to abusive UK company name registrations.

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