The role of the Tribunal
The Tribunal deals with applications (complaints) made under sections 69(1)(a) and (b) of the Companies Act 2006 (‘the Act’). References in this fact sheet to company names also apply to the names of limited liability partnerships. This provision of the Act provides a remedy for parties who are aggrieved by the registration of a company name in which they have a goodwill/reputation; specifically, that they suspect the name has been registered in order to extract money or to prevent the aggrieved party from registering the name. An example might be when someone registers one or more variations of the name of a well-known company in order to get the latter company to buy the registration(s). Another example might be where someone knows that a merger is about to take place between two companies and so registers one or more variations of the name that the newly formed commercial entity is likely to require.
The registration holder can rely upon the following defences:
- that the name was registered before the start of the activities on which the applicant relies to show it has goodwill/reputation
- that the company is operating under the name or is planning to do so and has incurred substantial start-up costs, or was operating under the name but is now dormant
- 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
- that the interests of the applicant are not adversely affected to any significant extent
It is very important to note that an application to the Company Names Tribunal will succeed if the registration holder cannot show any of the above (assuming that the applicant has a satisfactory goodwill/reputation in the name or a similar name).
An application to the Tribunal will also succeed even if the registration holder can show that it satisfies the defence criteria listed in the first three defences above if the applicant can prove that the registration holder’s main purpose in registering the company name was to obtain money (or some other consideration) from the applicant or to prevent the applicant from registering the name.
It is to be noted that one of the defences is that the company is operating under the company name; an application to the Tribunal is not an alternative to an action for passing-off or trade mark infringement.
Who we are
We’re a team of 9 based at the Intellectual Property Office in Newport, South Wales. The adjudicators who decide the cases are hearing officers who are experienced in trade mark tribunal work.
We’re responsible for:
- deciding disputes brought before us fairly, efficiently and cost-effectively
- ordering offending companies (and any officers who are joined to the dispute) to change their company name
- ordering Companies House to change the name of an offending company that does not comply with our order
- deciding who pays towards the cost of the dispute and how much
From 2014 to 2015, our priorities will be to:
- issue 75% of our decisions within 15 months of the counter-statement being filed
- help users to understand whether the tribunal is the right forum for their dispute
Please read the following information carefully as the Tribunal only deals with a very limited set of circumstances.
If you apply to the Tribunal in error you will not receive a refund.
Registered company name
The person making the application (the complaint) to the Tribunal - the applicant - does not necessarily have to have a registered company name before making the application. However, the applicant will have to demonstrate goodwill/reputation in the name at the time that it was adopted by the registration holder as the company name.
Deciding the case
A company names adjudicator(s) will decide the case. The adjudicators are hearing officers who are experienced in trade mark tribunal work. They are based at the IPO in Newport, South Wales.
In many cases, it is better for parties to negotiate a solution before taking legal action. Using an Alternative Dispute Resolution (ADR), such as mediation, can often be cheaper and quicker and the results of a decision can be beneficial to all parties. If parties agree to mediation, the mediator will meet each side separately and together to discuss the issues involved. The mediator will act as a facilitator to try to settle the dispute but will not make a decision. The outcome is not binding and parties can continue with legal action if mediation fails. The IPO has a mediation service, providing both mediators and the premises for mediation, and also maintains a list of other mediation providers.
Applying to the Tribunal
You can apply to the Tribunal on Form CNA 1. You will need to give your own details and the details of the company name to which you object, together with a concise explanation (the statement of grounds) as to why you are making the application. You will need to enter a UK address to which the Tribunal can send correspondence and you will need to include the application fee with the form and fee sheet. You will also need to make a statement regarding whether you have contacted the company/ limited liability partnership in relation to the matter prior to filing the application; when you did so and what you said to the company/limited liability partnership. If you do not give the company name holder adequate notice of your intention to file the application, this may affect any award of costs at the end of the proceedings.
Defending a company name registration
If you receive a notice that someone has applied to have your company name registration changed and you wish to file a defence, you must send in Form CNA2, a counterstatement and the appropriate fee (and fee sheet) by the date specified in the notice; otherwise the adjudicator is likely to order you to change your company name registration to something which does not offend. If you fail to change the name by the date specified, the adjudicator may determine a new name.
After the application form has been accepted it will be sent to the registration holder. If the registration holder does not defend its company name registration within the time allowed, the adjudicator will normally order it to change its company name registration to something which does not offend. If the registration holder does defend its registration, the Tribunal will set timescales for each side to file evidence to support its case. If the applicant does not file any evidence to support its case, the adjudicator may dismiss the application. If the applicant files evidence demonstrating that it owned a goodwill or reputation under the name at the time the company name was registered (or the registration holder admits as much) and the registration holder fails to provide a satisfactory defence of its registration of the company name, the adjudicator will order a change of name, as described above.
Where the application is defended, an adjudicator or a panel of adjudicators will make a decision, either with or without a hearing. A hearing can be held either in Newport, South Wales (at the IPO), or at the IPO’s offices in London. After the hearing, a written decision will be issued which will explain why the company name must be changed, or why no such order is appropriate.
All documents submitted to the adjudicator are open to public inspection, unless the adjudicator directs otherwise.
Failure to change a company name following an order
If the registration holder fails to change the name by the date specified, the adjudicator may determine a new name for the company and order the Registrar of Companies to make the change without the holder’s consent.
Appealing an adjudicator’s decision
If you disagree with the decision made by the adjudicator, you can appeal to the High Court of England and Wales, the High Court of Northern Ireland or the Court of Session in Scotland. An appeal can be made only against a decision to uphold or dismiss an application made under section 69 of the Companies Act 2006.
Much depends upon the parties themselves e.g. whether an application is defended, whether the parties adhere to the timescales set by the adjudicator or whether they ask for more time to file evidence and whether the parties appeal against the adjudicator’s decision to the court.
Fees for the Tribunal are available.
In addition to these fees, there are the costs incurred by the parties e.g. employing legal advisors. The Tribunal’s Practice Direction gives information about costs. Once an order for a change of name (see below) is issued by the Tribunal, the adjudicator cannot revisit any costs issues. If the applicant loses the case, or decides not to proceed with it, after having started it, the applicant will usually have to pay costs to the registration holder.
If you are a party involved in a dispute before the Tribunal, you will be able to contact a designated case work examiner, responsible for the management of your case. Their details appear on all correspondence from the Tribunal. Case work examiners must remain impartial at all times because they are administering a tribunal. This means that the advice they can give is limited to information about the procedure, such as the dates by which actions must be taken, the format of documents and evidence, and the next steps in the proceedings. They cannot give advice on whether you should apply or defend, or on the content of your explanations or evidence; it is for parties themselves to decide how they wish to present their case. You may wish to consult a legal advisor such as a solicitor or intellectual property attorney; if you wish to appoint a legal advisor after proceedings have started, or you need to change address details, you will need to file Form CNA 7.
The Companies Act 2006 and the Company Names Adjudicator Rules 2008 provide the legal framework within which the Tribunal operates. The Rules deal with procedural matters, such as the sequence of events in a case and the consequences of certain actions (or absence of action) e.g. non-filing of evidence and extension of time requests.
A full list of Tribunal forms is available.