Decision

Decision on Germany Red Bull (AMUSI) International Plant Nutrition Limited

Updated 12 April 2021

Order under the Companies Act 2006

In the matter of application No. 3159.

For a change of company name of registration No. 12493556.

Decision

The company name GERMANY RED BULL (AMUSI) INTERNATIONAL PLANT NUTRITION LIMITED has been registered since 2 March 2020 under number 12493556.

By an application filed on 1 April 2020, RED BULL GMBH applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (the Act).

A copy of this application was sent to the primary respondent’s registered office on 25 June 20920, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008. The copy of the application was sent by Royal Mail “Signed For” service and also by standard mail. It was returned “address unknown”. On 25 June 2020, the Tribunal wrote to Shuxing Zhang to inform him that the applicant had requested that he be joined to the proceedings. No comments were received from Shuxing Zhang in relation to this request. On 10 December 2020, Shuxing Zhang was joined as a co-respondent. On 10 December 2020, the parties were advised that no defence had been received to the application and so the adjudicator may treat the application as not being opposed. The parties were granted a period of 14 days to request a hearing in relation to this matter, if they so wished. The letter sent to the co-respondent by standard mail was returned “addressee unknown”. No request for a hearing was made.

The primary respondent did not file a defence within the three month period specified by the adjudicator under rule 3(3). Rule 3(4) states

“The primary respondent, before the end of that period, shall file a counter-statement on the appropriate form, otherwise the adjudicator may treat it as not opposing the application and may make an order under section 73(1).”

Under the provisions of this rule, the adjudicator may exercise discretion so as to treat the respondent as opposing the application. In this case I can see no reason to exercise such discretion and, therefore, decline to do so.

As the primary respondent has not responded to the allegations made, it is treated as not opposing the application. Therefore, in accordance with section 73(1) of the Act I make the following order:

(a) GERMANY RED BULL (AMUSI) INTERNATIONAL PLANT NUTRITION LIMITED shall change its name within one month of the date of this order to one that is not an offending name ^{[footnote 1]};

(b) GERMANY RED BULL (AMUSI) INTERNATIONAL PLANT NUTRITION LIMITED and Shuxing Zhang each shall:

(i) take such steps as are within their power to make, or facilitate the making, of that change;

(ii) not to cause or permit any steps to be taken calculated to result in another company being registered with a name that is an offending name.

In accordance with s.73(3) of the Act, this order may be enforced in the same way as an order of the High Court or, in Scotland, the Court of Session.

In any event, if no such change is made within one month of the date of this order, I will determine a new company name as per section 73(4) of the Act and will give notice of that change under section 73(5) of the Act.

All respondents, including individual co-respondents, have a legal duty under Section 73(1)(b)(ii) of the Companies Act 2006 not to cause or permit any steps to be taken calculated to result in another company being registered with an offending name; this includes the current company. Non-compliance may result in an action being brought for contempt of court and may result in a custodial sentence.

Relevant to the applicant’s request for costs, at paragraph 6 of its Form CNA1, it states:

..…it is clear this incorporation is part of a pattern of incorporations in bad faith that have already been the subject of two concluded High Court actions and two pending Company Names Tribunal complaints.

Claim No. IL-2018-000006 was concluded with a court default order made by Mr Justice Barling on 20 February 2018 against 33 UK companies and their directors. Claim No. IL-2018-000116 concluded with a court default order by Master Marsh on 19 September 2018 against 20 UK companies and their directors..…

It can be seen that the subject of this application, Germany Red Bull (AMUSI) International Plant Nutrition Limited has a name similar to the following defendants in the first action above:

• GERMANY FU TAI RED BULL POTASSIUM GROUP (EUROPE) CO., LTD
• GERMANY RED BULL LEOPOLDITE GROUP CO., LTD
• GERMAN RED BULL VITAMIN BEVERAGE CO., LTD
• GERMANY RED BULL VITAMIN BEVERAGE LIMITED
• GERMAN RED BULL VITAMIN DRINK CO., LTD
• GERMAN RED BULL SULFUR POTASSIUM GROUP CO., LTD
• GERMANY RED BULL AGRICULTURAL TECHNOLOGY CO., LIMITED

Since those two court actions concluded, Germany Red Bull Int’l Industrial Group Holdings Limited (Company no. 12275449) was incorporated on 22 October 2019. Red Bull has filed an application to the Companies Name Tribunal concerning the company (Application No. 3089). Via common directors/secretaries/addresses, that company is related to two defendants in the first proceedings.”

In response to question 7 on the Form CNA 1 (“Did you warn the company that if it did not change its name that you would start legal proceedings against it? If “yes” when did you warn the company?”), the applicant states:

“No. It seems inevitable that writing to the Company will simply waste costs. None of the defendants in the above proceedings responded to our correspondence or to court documents. Letters and served documents were frequently returned to us unopened or undelivered. Many of the addresses used were non-functioning (e.g were used by hundreds of thousands of companies and yet were merely a lock up garage with no ability to handle corporate communications).”

The Tribunal accepts the applicant’s reason for not providing prior warning to the primary respondent. Further, the Post Office has indicated that the returned correspondence could not be delivered because the addressee is unknown at the address provided. This strongly suggests that even if the applicant had served notice of its intentions to pursue tribunal proceedings, it would not have been received by the primary respondent. In the light of these circumstances and the applicant having been successful, it is entitled to a contribution towards its costs. I order GERMANY RED BULL (AMUSI) INTERNATIONAL PLANT NUTRITION LIMITED and Shuxing Zhang, being jointly and severally liable, to pay RED BULL GMBH costs on the following basis:

Fee for application: £400
Statement of case: £400

Total: £800

This sum is to be paid within seven days of the expiry of the appeal period or within seven days of the final determination of this case if any appeal against this decision is unsuccessful.

Any notice of appeal against this decision to order a change of name must be given within one month of the date of this order. Appeal is to the High Court in England, Wales and Northern Ireland and to the Court of Session in Scotland.

The company adjudicator must be advised if an appeal is lodged, so that implementation of the order is suspended.

Dated 2 February 2021

Susan Eaves
Company Names Adjudicator

1. An “offending name” means a name that, by reason of its similarity to the name associated with the applicant in which he claims goodwill, would be likely to be the subject of a direction under section 67 (power of Secretary of State to direct change of name), or to give rise to a further application under section 69. ↩