Decision

Decision on All Intax UK Ltd

Published 10 February 2021

Companies Act 2006

In the matter of application No. 1935 by Jacqui Fleming for a change to the company name of ALL INTAX UK LTD, a company incorporated under number 11286607.

Background and pleadings

1.The company name ALL INTAX UK LTD (“the primary respondent”) has been registered since incorporation on 3 April 2018 under number 11286607.

2.By an application filed on 7 February 2019, Jacqui Fleming applied under section 69(1) of the Companies Act 2006 (“the Act”) for the primary respondent’s name to be changed.

3.Ms Fleming states that the name Intax Limited is associated with her. Ms Fleming states that she has run a tax consultancy business since 2012 using this name. Virtually all her work is obtained via word of mouth. Ms Fleming is concerned that prospective clients may contact the primary respondent in the belief that they are contacting her business. She states that ‘Intax’ is also “trade marked”. Ms Fleming states that the primary respondent is providing taxation advice, within the same E1 postcode (in London) and that it had “clearly been set up to take advantage of the goodwill and reputation of her business”.

4.The primary respondent filed a notice of defence and counterstatement, which was signed with a statement of truth by Mr Muhammad Ebrahim. Mr Ebrahim was later joined as a co-respondent to the proceedings, at Ms Fleming’s request, under section 69(3) of the Act. There is a single defence relied upon: that the company name was adopted in good faith (section 69(4)(d) of the Act). We have reproduced the main part of the defence, below:

5.Only Ms Fleming 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, and neither chose to file written submissions in lieu of attendance. Both parties represent themselves. We make this decision having carefully considered all the papers.

Ms Fleming’s evidence

6.Ms Fleming’s evidence takes the form of a brief witness statement by Simon Stedman, dated 18 June 2019, with accompanying exhibits. Mr Stedman states that he is Ms Fleming’s accountant. He states that:

• Intax LLP has been trading since October 2012. He states that “the business” was incorporated on 1 April 2018 and that there “was no change of beneficial ownership”

• in order to obtain the name Intax Limited, it was necessary to incorporate a new company called Intax Focus Limited, change the name of the LLP to Intax Consultancy London LLP, and finally change the name of Intax Focus Limited to Intax Limited. Mr Stedman states that this was done during April 2018. The certificate of incorporation of the LLP is shown at Exhibit SS1: incorporation took place on 16 October 2012. The certificate of incorporation on the change of name to Intax Limited from Intax Focus Limited is shown at Exhibit SS2. This is dated 25 April 2018

• on 10 January 2019, the owner of Intax Limited, Ms Fleming, became aware of the primary respondent’s existence when conducting a search at Companies House. Mr Stedman states: “Ms Fleming has worked extremely hard to build up her business particularly through word of mouth recommendations and she was very concerned that any Google search by a prospective client on the name “Intax” would lead prospective clients to engage with All Intax UK Limited rather than her business, particularly given the fact that both businesses were located within the E1 postcode.”

• Mr Stedman wrote to Mr Ebrahim on the same date to ask him if he would change the name of his business, given that it had only been established for less than a year. The letter is shown at Exhibit SS3. No reply was received, causing Mr Stedman to send another letter, on 22 January 2019. This letter is shown at Exhibit SS4. This letter gave notice that if the name was not changed by 31 January 2019, an application would be made to this Tribunal

Decision

7.Section 69 of the Act 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

8.The relevant date for the purpose of proving goodwill/reputation is the date of the registration of the contested company name which, in this case, is the date of incorporation, 3 April 2018.

9.The concept of goodwill was explained in Inland Revenue Commissioners v Muller & Co’s Margerine 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.”

10.Ms Fleming, not her company, is the applicant. Her company is a separate legal entity capable of holding goodwill. That said, the Act refers to reputation as well as goodwill. Ms Fleming and her company could have a reputation together in INTAX LIMITED, which is the name relied upon in the pleadings. The position is further complicated by the fact that, prior to April 2018 (the same month as the primary respondent was incorporated), the ‘business’ was an LLP. Mr Stedman states that there was no beneficial change of ownership. However, the register of companies shows that Ms Fleming was one of the partners of the LLP. The LLP was not dissolved until 22 September 2020, according to the register of companies ^{[footnote 1]}. There is no evidence about the ownership of goodwill in relation to the individual partners, or what happened to it vis-à-vis the new company (or companies) ^{[footnote 2]}.

11.There is another issue, of fundamental importance, even if it could be said that Ms Fleming and her company both have goodwill or a reputation in the name relied upon. Sections 69(1) and (7) stipulate that the applicant must have goodwill and/or a reputation in the name associated with it. This must be proven in evidence. Paragraph 4.1 of the Company Names Tribunal Practice Direction says:

“4.1 The purpose of evidence before the tribunal is for parties to prove their case by demonstrating facts and rebuttal of the other side’s version of events. In relation to the applicant, it is a statutory requirement under section 69(1)(a) and (b) that it establishes goodwill or reputation (section 69(7)). Unless the nature and extent of the applicant’s goodwill or reputation are particularised in the claim and admitted by the respondent, evidence filed by the applicant must, therefore, include proof that the applicant has the requisite goodwill or reputation to bring the action before the tribunal, in addition to other facts which it considers relevant.”

12.It is not enough to assert that a name has been used since 2012 without also providing documentary evidence, or at least a witness’s narrative, giving such details as turnover, the nature of the services, the provision of, for example, invoices, advertisements, emails, website prints and other such evidence associated with the running of a business. None of this has been provided.

13.We note that Mr Ebrahim entered “N/A” in the section of the defence form (CNA2) which asks the primary respondent to state which of the allegations by the applicant it is unable to admit or deny and which it requires the applicant to prove. In this section of the form, Mr Ebrahim could have requested proof of goodwill/reputation. However, he has not expressly admitted that Ms Fleming had the requisite goodwill/reputation. Given that Mr Ebrahim is not professionally represented, it is not altogether surprising that he has focussed upon his own defence. A further reason for proceeding on the basis that the respondents have not conceded goodwill/reputation is that in the previous section of the defence form, Mr Ebrahim expressly said:

“We do not agree with any of the allegations stated within the statement of grounds.”

This includes not agreeing that the name relied upon is associated with Ms Fleming and not agreeing with her statement about goodwill or reputation. Furthermore, the Practice Direction says that unless the nature and extent of the applicant’s goodwill or reputation are particularised in the claim and admitted by the respondent, evidence filed by the applicant must include proof that the applicant has the requisite goodwill or reputation to bring the action before the Tribunal. Although she described her business as tax consultancy (its nature), Ms Fleming did not include any details about the extent of her goodwill in her application (such as the extent to which there have been customers for those tax advice services). It is, therefore, impossible for us to establish to what, if any, extent goodwill or reputation exists and who is the owner of such goodwill or reputation.

14.Section 69(1) requires that an applicant to the Tribunal must have had sufficient goodwill/reputation to bring the complaint. In the present case, this is the end of the matter because Ms Fleming has not proved that she (or her company) had any goodwill/reputation in the name relied upon, Intax Limited, a name that was only adopted on 25 April 2018, after the primary respondent was incorporated. She has also not proved that she or her company had goodwill/reputation in the name INTAX.

Final remarks

15.In her application, Ms Fleming states that the primary respondent “is providing taxation advice”. The purpose of s.69 of the Act is to prevent the opportunistic registration of company names for commercial gain or other mischief ^{[footnote 3]}. It is not intended to provide exclusive rights to a company or trading name (as with trade marks). Applications to the Tribunal are not an alternative to an action for passing off or trade mark infringement. Therefore, Ms Fleming’s admission could, on the face of it, provide the respondent with a defence under section 69(4)(b)(i) (that the company was operating), capable of defeating Ms Fleming’s claim even if goodwill or reputation had been demonstrated.

Outcome

16.The application to change the company name has failed because Ms Fleming has failed to establish that she had goodwill and/or a reputation in the name relied upon, INTAX LIMITED or, indeed, INTAX.

Costs

17.The Tribunal awards costs from the published scale at paragraph 10 of the Tribunal’s Practice Direction. This is intended to provide a contribution, but not recompense, to the successful party. It is the primary respondent who has been successful in these proceedings and who is entitled to a contribution towards its costs. The primary respondent has not been professionally represented. We will therefore reduce the award by 50% (statutory fees are awarded in full). The award breakdown, including a small amount for considering Ms Fleming’s brief evidence, is as follows:

Considering the CNA1 and evidence, and filing a CNA2: £200

Fee for filing the CNA2: £150

Total: £350

18.Jacqui Fleming is ordered to pay All Intax UK Ltd the sum of £350. This sum is to be paid within twenty-one days 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).

19.Under section 74(1) of the Act, an appeal can only be made in relation to the decision to dismiss the applications; 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 2 February 2021

Judi Pike
Company Names Adjudicator

Mark Bryant
Company Names Adjudicator

Matthew Williams
Company Names Adjudicator

1. Company number OC379383 ↩

2. Hanchett-Stamford v. Attorney General [2008] EWHC 330 (Ch), paragraph 47, cited in John Williams and Barbara Williams v. Canaries Seaschool SLU, Mr Geoffrey Hobbs, sitting as the Appointed Person, BL O/074/10 https://www.ipo.gov.uk/t-challenge-decision-results/o07410.pdf ↩

3. This is why it is a defence to show that the company is actually operating under the name (and therefore subject to the laws of trade marks and passing off). ↩