Decision

Decision on Access Logistics (UK) Limited

Published 10 March 2023

Companies Act 2006

In the matter of application No. 3453 by ACCESS LOGISTICS LIMITED for a change to the company name of ACCESS LOGISTICS (UK) LIMITED, a company incorporated under number 04308141.

Background and pleadings

1. The company name ACCESS LOGISTICS (UK) LIMITED (“the primary respondent”) has been registered since 5 August 2003 under number 04308141. The company was initially incorporated on 19 October 2001 under the name ACCESS COURIERS LIMITED, and subsequently changed its name to ACCESS COURIERS & SHIPPING (WORLDWIDE) LIMITED (on 06 December 2001) and ACCESS LOGISTICS (UK) LIMITED (on 05 August 2003).

2. By an application filed on 23 March 2021, ACCESS LOGISTICS LIMITED (“the applicant”) applied under Section 69(1) of the Companies Act 2006 (“the Act”) for the primary respondent’s name to be changed.

3. The applicant claims that its company was set up in 1999 as a part-time venture developing into a small-size business that currently employs six members of staff. The applicant appears to be relying on ACCESS LOGISTICS LIMITED, i.e. the full name of the company shown in the application and, as it can be seen from the answers provided in the CNA1 (which I reproduce below), it says to have goodwill and reputation in the field of transport:

“Please provide details of your goodwill or reputation – […] We built up a stable and good travel record with clientele (and have some great testimonials) also a good travel record with longstanding accountants + credit reference agencies. A carb[…]n (illegible) neutral award granted at the Royal Albert Hall”

“Please provide details of the field of business in which this name has goodwill or reputation - UK plus international sector freight forwarding with both directors having amassed [illegible] ’75 years transport business experience between them”.

4. The applicant claims that it objects to the primary respondent’s name because in 2016/2017 they were incorrectly served a County Court Judgment (“CCJ”) issued against the primary respondent’s company and it took the applicant months to resolve this matter. Further, the CCJ diminished the applicant’s credit history.

5. The applicant also noted that the primary respondent’s current name was adopted in August 2003 and that the primary respondent’s former name was ACCESS COURIER LIMITED, later changed to ACCESS COURIER + SHIPPING (WORLDWIDE LTD) and suggests that the primary respondent revert to one of its previous names.

6. On 10 June 2021, the primary respondent filed a notice of defence and counterstatement in which it stated:

“Access Logistics (UK) Ltd was not contacted by the applicant via email or telephone in 2016/2017, and we were unaware that a CCJ was registered against Access Logistics Ltd. If we were contacted in 2016/2017 we would have helped to resolve the matter and not allow the situation to get to this stage. The applicant did not give us this opportunity. The CCJ relates to overdue invoices from Acclaims Handling Ltd to Access Logistics (UK) Ltd, and the debt of £1,161.88 (including £170.00 court fee) was paid in full to Lambeth County Court on 13th April 2016. Acclaim Handling Limited pursued the wrong company and liability lies with them. The Court incorrectly enforced the CCJ against the wrong company and therefore liability also lays with them. The Applicant contacted us for the first time in 2020 and asked us to release our domain name to them. They quoted ‘With Brexit upon us it is essential that along with our European domain, we also have a UK domain’. The applicant also stated that they were prepared to offer us www.accesslogisticsuk.co.uk and www.accesslogisticsuk.com to recompense. We did not agree to this as our domain name has been registered for over 15 years and fully serves our business. We re-launched our website in 2017 as we found the look and feel of it was outdated and wanted to generate more interest and sales. We bought our domain name and launched our website to showcase the services our business offers, look professional and to encourage customers to contact us. In October 2020 we applied to register our trademark with the Intellectual Property Office, and in April 2021 our logo and the name Access Logistics was successfully registered under number UK00003545833 without any opposition during the 2-month Opposition Period. When our company name was legally changed to Access Logistics (UK) Ltd we were not aware that Access Logistics Ltd existed, and registration of our new name took place without any objections from Companies House. Any company formation or change of company name application containing a company name that is the ‘same as’ or ‘too similar’ to an existing name will be rejected by Companies House at the point of registration. Access Logistics (UK) Ltd is a legitimate freight forwarding company and has traded in good faith for the past 19 years. We specialise in sea and air freight to Mauritius amongst other destinations and strived to build the company and keep good relations with our customers and suppliers.”

7. The primary respondent relies upon the following defences:

• it is operating under the name;

• its name was adopted in good faith;

• the interests of the applicant are not adversely affected to any significant extent.

8. In support of its defences, the primary respondent claims that:

i. Access Logistics (UK) Ltd has operated as a legitimate freight forwarding company under this name for the past 17 years;

ii. the company name was legally changed to Access Logistics (UK) Ltd in 2003, and registration of the new name took place without any objections from Companies House. In this connection, the primary respondent asserts that any company formation or change of company name application containing a company name that is the ‘same as’ or ‘too similar’ to an existing name would have been rejected by Companies House at the point of registration;

iii. Access Logistics (UK) Ltd has never intentionally caused any problems to the applicant. On the matter of the CCJ, liability lies with Acclaims Handling Limited (a third-party company that is not involved in these proceedings) and the Court, not the primary respondent.

9. At the request of the applicant, David Campbell director of the primary respondent, was subsequently joined to the proceedings as co-respondent.

10. Only the applicant filed evidence. The parties were asked if they wanted a decision to be made following a hearing or from the papers. Neither side chose to be heard. Neither party is professionally represented. I make this decision having carefully considered all the papers.

The evidence

11. The applicant’s evidence takes the form of a witness statement by Mr Kenneth Moss, in his capacity as Managing Director of the applicant, together with 38 attachments.

Decision

12. Section 69 of the Companies Act 2006 states:

“(1) A person (“the applicant”) may object to a company’s registered name on the ground-

(a) that it is the same as a name associated with the applicant in which he has goodwill, or

(b) that it is sufficiently similar to such a name that its use in the United Kingdom would be likely to mislead by suggesting a connection between the company and the applicant.

(2) The objection must be made by application to a company names adjudicator (see section 70).

(3) The company concerned shall be the primary respondent to the application.

Any of its members or directors may be joined as respondents.

(4) If the ground specified in subsection (1)(a) or (b) is established, it is for the respondents to show-

(a) that the name was registered before the commencement of the activities on which the applicant relies to show goodwill; or

(b) that the company-

(i) is operating under the name, or

(ii) is proposing to do so and has incurred substantial start-up costs in preparation, or

(iii) was formerly operating under the name and is now dormant; or

(c) that the name was registered in the ordinary course of a company formation business and the company is available for sale to the applicant on the standard terms of that business; or

(d) that the name was adopted in good faith; or

(e) that the interests of the applicant are not adversely affected to any significant extent.

If none of those is shown, the objection shall be upheld.

(5) If the facts mentioned in subsection (4)(a), (b) or (c) are established, the objection shall nevertheless be upheld if the applicant shows that the main purpose of the respondents (or any of them) in registering the name was to obtain money (or other consideration) from the applicant or prevent him from registering the name.

(6) If the objection is not upheld under subsection (4) or (5), it shall be dismissed.

(7) In this section “goodwill” includes reputation of any description.”

Goodwill/Reputation

13. The applicant must establish that it had, at the relevant date, goodwill or reputation in relation to a name that is the same, or sufficiently similar, to that of the contested company name suggesting a connection between the company and the applicant. The relevant date for the purpose of proving goodwill/reputation is the date of the application for a change of the contested company name which, in this case, is 23 March 2021. ^{[footnote 1]}

14. The concept of goodwill was explained in Inland Revenue Commissioners v Muller & Co’s Margarine Ltd [1901] AC 217 at 223:

“What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start.”

The applicant’s evidence about its business

15. Sections 69(1) and (7) stipulate that the applicant must have goodwill and/or reputation in the name associated with it. This must be proven in evidence. The applicant’s evidence relevant to demonstrating its goodwill/reputation can be summarised as follows:

• Mr Moss states that his company’s name was first registered on 8 October 1999 and that his company has been using its registered name since then, although initially it was used on a “a part-time basis”. The company now has six employees and a thriving little business, trading under their membership of the British International Freight Association (BIFA);

• the applicant had no knowledge of the fact that there was another company using a similar name and trading in the same business sector - namely transport services, shipping and forwarding – until they received a restriction on suppliers credit to their company and discovered that a County Court Judgement (CCJ) had been incorrectly issued again them, which took months to rectify;

• Mr Moss states that because the applicant’s company was registered more than three years before the contested company, the primary respondent must have known of the existence of the applicant, and this is likely to be the reason why they added the word ‘UK’ as part of their name;

• the primary respondent had a CCJ issued against them for being extremely slow to pay their debts. The CCJ was sent to the primary respondent’s registered address, but they ignored it and somehow it was served on the applicant;

• attempts were made to speak and communicate with the primary respondent but were all ignored. Mr Moss explains that the reason why the application was made is to avoid further confusion to customers, and that many potential new clients and suppliers get the companies confused with one another;

• because the primary respondent had registered the domain name accesslogistics.co.uk, the applicant had to settle for the domain name accesslogistics.eu. Although the applicant attempted to find a fair solution, the primary respondent was not willing to negotiate. The applicant bought the domain names accesslogisticsuk.co.uk and accesslogisticsuk.com and offered them to the primary respondent for free together with an offer to withdraw a court and legal fees claim seeking to reimburse the applicant for the many months it took to clear its company name as a result of the CCJ issued incorrectly against the applicant. However, the primary respondent was not interested in mediation;

• the applicant has been using its company name since it was first registered in 1999 initially as a part-time business. Mr Moss states “I can advise that from a part-time business set-up in 1999 until 2018 (see accountants note: Brian Collins of Brown & Co. Wickford), I have created six full time jobs now and the last few years have seen the applicant’s turnover rise steadily”. The following turnover figures are provided for the years 2018-2021:

2018 - £300k

2019 - £350k

2020 - £404k

2021 - £939k

16. This concludes my summary of the evidence to the extent that I consider it necessary.

Is the primary respondent’s company name the same as (or sufficiently similar to) a name associated with the applicant in which the applicant has goodwill?

17. The name relied upon by the applicant is ACCESS LOGISTICS LIMITED or ACCESS LOGISTICS, the primary respondent’s name is ACCESS LOGISTICS (UK) LIMITED. ln Zurich Insurance Co v Zurich Investments Ltd [2011] RPC 6 the Tribunal stated as follows at 37:

“An undertaking cannot trade by reference to a company name under which it is not incorporated and, under section 66 of the Act, identical company names cannot be registered. Taking this into account, section 69(1)(a) of the Act would be virtually redundant if it requires the name upon which the applicant relies to include the designation of the nature of the company. For the purposes of section 69(1)(a), a company name and the name associated with an applicant are the same if the only difference that arises is from the designation of the nature of the company. So, in this case, the presence of the word ‘Limited’ of itself does not prevent a finding that the names are the same.”

18. The only difference between the primary respondent’s company name and the name associated with the applicant are the words ‘UK’ (presented within in brackets) and LIMITED (if the applicant relies on ACCESS LOGISTICS solely) which will be perceived as indicative of the geographical location and the corporate status of the company respectively, so these elements of the company name do not have a bearing upon the comparison of the names. Consequently, the provisions of Section 69(1)(a) are satisfied as the names are identical. In any event, they clearly satisfy the provisions of Section 69(1)(b) as being similar (highly so).

Did the applicant have goodwill in the name ACCESS LOGISTICS or ACCESS LOGISTICS LIMITED by the date of the application?

19. The respondents have not contested the applicant’s evidence.

20. The applicant stated that it started using the company’s name since its incorporation in 1999 (approximately 20 years before the relevant date) initially as a part-time business. The business developed over time and, by 2018, it employed six members of staff. There is a statement that use has been continuous, and although there are no invoices, there are turnover figures for the four-year period preceding the relevant date showing that between 2018 and 2021 the applicant’s annual turnover increased from £300K to £939K generating nearly a total of £2million.

21. Although there is not much information about the nature of the services provided, Mr Moss says that the services are provided under their membership of the British International Freight Association and are in the field of transport. Further, he refers to ‘Cargo Handling’ as correctly categorising what the applicant does. In terms of use of the name, although there is no evidence of promotional or marketing material, there is evidence of outward use of the words ACCESS LOGISTICS in the applicant’s email address @accesslogistics.eu prior to the relevant date. Further, in an email communication between the applicant and the primary respondent (sent from the same @accesslogistics.eu email address) dated 21 December 2020 Mr Moss refers to the applicant’s director being refused business on a contract already offered from a client and credit from suppliers because of the error occurred with the CCJ – this indirectly confirms that the company was already trading in 2017. Finally, there is a copy of a webpage from the applicant’s website accesslogistics.eu with a copyright date of 2017.

22. Taking into account the length of use, the turnover figures, and the examples of use of the name ACCESS LOGISTSCS within a business email address and on the website, I am satisfied that the evidence is sufficient for me to find that the applicant had goodwill in the name ACCESS LOGISTSCS in the UK at the relevant date.

23. In light of this finding, it is now necessary that I consider the respondents’ defences.

Defences

24. As the ground specified in subsection 69(1)(a) is established, the onus switches to the primary respondent to establish whether it can rely on any of the defences pleaded. The primary respondent relies upon the defences identified at Sections 69(4)(b), (d) and (e) of the Act:

• that the company is operating under the name, or is proposing to do so and has incurred substantial start-up costs in preparation, or was formerly operating under the name and is now dormant (section 69(4)(b));

• that the company name was adopted in good faith (section 69(4)(d)); and,

• that the interests of the applicant are not adversely affected to any significant extent (section 69(4)(e))

25. It is for the primary respondent to make good its defences through filing evidence. Although the primary respondent has not filed evidence during the evidence rounds, I will treat the counterstatement as the primary respondent’s evidence.

26. The first defence is that the company is operating under the name, is proposing to do so and has incurred substantial start-up costs in preparation or was formerly operating under the name and is now dormant. The relevant date for this defence is the date on which the application to change the contested company name was made: 23 March 2021.

27. The primary respondent states in its counterstatement that Access Logistics (UK) Ltd is a legitimate freight forwarding company, it has traded in good faith for the past 19 years and specialises in sea and air freight to Mauritius amongst other destinations. The applicant also states that the business keeps good relations with their customers and suppliers.

28. It appears to be common ground between the parties that the primary respondent’s company is operating under the name ACCESS LOGISTSICS. In this connection, both parties referred to the primary respondent owning the domain name accesslogistics.co.uk and to the applicant’s offer to purchase that domain name in 2020; both parties also agree that the applicant’s offer was refused and the primary respondent states that this was because the domain name had been registered for 15 years and “fully serves the business”. The applicant also provided evidence of the primary respondent’s website as it appeared in 2017 and later in 2021 which corroborates the primary respondent’s account that the website was re-launched in 2017 to generate more interest and sales. The applicant went even further, providing copies of two invoices from other freight companies which were meant to be addressed to the primary respondent (both dated December 2020) all of which confirm that the primary respondent was trading under the name prior to the relevant date.

29. Taking all of the above into account, I find that the defence under Section 69(4)(b) is made out.

30. In view of the above findings, I do not consider it necessary to consider the remaining defences.

31. Although it is clear that the main reason for the applicant to make an application to change the primary respondent’s name is to avoid further confusion between the companies – which regrettably is inevitable when two companies use identical or nearly identical names in the same business sector as in this case – the application has failed here because it is clear that the primary respondent is operating under the name. In this connection, it is important to note that the purpose of the legislation contained in the Companies Act 2006 is to prevent the opportunistic registration of company names, not likelihood of confusion between companies’ names.

Outcome

32. The application has failed.

Costs

33. The Tribunal awards costs from the published scale at paragraph 10 of the Tribunal’s Practice Direction. This is intended to provide a contribution to costs, but not to recompense the successful party. It is the respondents who have been successful in these proceedings and who are entitled to a contribution towards their costs. Although the applicant has filed evidence, the respondents have filed no evidence or submissions in reply, so I will award only £50 for considering the applicant’s evidence. The award breakdown is as follows:

Considering the Form CNA1 and filing the Form CNA2: £400
Fee for filing the Form CNA2: £150
Considering the applicant’s evidence: £50

Total £600

34. ACCESS LOGISTICS LIMITED is ordered to pay ACCESS LOGISTICS (UK) LIMITED the sum of £600. This sum is to be paid within twenty-one days of the expiry of the period allowed for appeal or, if there is an appeal, within twenty-one days of the conclusion of the appeal proceedings (subject to any order of the appellant tribunal).

35. Under section 74(1) of the Act, an appeal can only be made in relation to the decision to uphold the application; there is no right of appeal in relation to costs. Any notice of appeal must be given within one month of the date of this decision. Appeal is to the High Court in England Wales and Northern Ireland and to the Court of Session in Scotland. The Tribunal must be advised if an appeal is lodged.

Dated 3rd March 2023

Teresa Perks
Company Names Adjudicator

1. Botanica Agriculture and Extraction Limited v Botanica Limited [2022] EWHC 2957 (Ch) and MB Inspection Ltd v Hi-Rope Ltd [2010] RPC 18 ↩