Decision

Decision on BAE Marconi Electronic Systems Co., Ltd

Published 10 May 2021

Order under the Companies Act 2006

In the matter of application No. 3258

For a change of company name of registration No. 12743101

Decision

The company name BAE MARCONI ELECTRONIC SYSTEMS CO., LTD has been registered since 14 July 2020 under number 12743101.

By an application filed on 28 August 2020, BAE SYSTEMS PLC 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 28 September 2020, 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. On 28 September 2020, the Tribunal wrote to Yunma Tianlong International Consulting Co., Limited and Le Feng to inform them that the applicant had requested that they be joined to the proceedings. No comments were received from Yunma Tianlong International Consulting Co., Limited and Le Feng in relation to this request. On 9 February 2021, Yunma Tianlong International Consulting Co., Limited and Le Feng were joined as co-respondents. On 9 February 2021, 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. No request for a hearing was made.

The primary respondent did not file a defence within the two 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) BAE MARCONI ELECTRONIC SYSTEMS CO., LTD shall change its name within one month of the date of this order to one that is not an offending name ^{[footnote 1]};

(b) BAE MARCONI ELECTRONIC SYSTEMS CO., LTD, Yunma Tianlong International Consulting Co., Limited and Le Feng 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.

The applicant is requesting its costs. In response to question 7 on the Form CNA1 (“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:

The same officers ..…previously sought to register a UK Co of the same name. The Applicant submitted a CNA1 application on 15 November 2018 in respect of that company (which the Tribunal forwarded to that company). The same officers have now sought again to register a new company with an identical name. They are therefore aware of the Applicant’s objections.

Also relevant to the applicant’s request for costs is the applicant’s comments in response to question 16 on the Form CNA1 (“Please provide any other relevant information you may have that you consider relevant to this application”), the applicant states:

The Applicant’s lawyers CMS, previously submitted a CNA1 application on 15 November 2018 in respect of a different company (company registration number 11322023) with an identical name to the Infringing Company, being BAE MARCONI ELECTRONIC SYSTEMS CO., LTD (the “First Company”).

The Company Director and Company Secretary of the First Company were listed as Le Feng and Yunma Tianlong International Consulting Co., Limited, the same Company Secretary and Company Director as the Infringing Company in the present application. On 3 December 2018 the Company Names Tribunal sent a letter informing CMS that the respondent (the First Company) had been sent a copy of the Applicant’s CNA1 and subsequently informed CMS that no CNA2 form was filed nor hearing requested so the Tribunal was due to issue a decision against the First Company. However, the Company Names Tribunal informed CMS on 25 November 2019 that the First Company had dissolved on 1 October 2019, presumably as a result of the Applicant’s previous application.

Since the Company Secretary and the sole Company Director of the Infringing Company are the same officers who were joined to the proceedings previously, and who had been notified of BAE Systems’ rights against the Infringing Company name, the Applicant requests that the Company Names Tribunal uses its discretion in line with paragraphs 10.4.1 and 10.4.2 of the Company Names Tribunal: practice direction to make an award of costs against the Infringing Company.

The Tribunal accepts the applicant’s reason for not providing prior warning to 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 BAE MARCONI ELECTRONIC SYSTEMS CO., LTD, Yunma Tianlong International Consulting Co., Limited and Le Feng, being jointly and severally liable, to pay BAE SYSTEMS PLC 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 10th May 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. ↩