Decision

Decision on Berkshire Hathaway Inc Ltd

Updated 4 April 2022

Order under the Companies Act 2006

In the matter of application No. 3468

For a change of company name of registration No. 11178693

Decision

The company name BERKSHIRE HATHAWAY INC LTD has been registered since 30 January 2018 under number 11178693.

By an application filed on 19 April 2021, BERKSHIRE HATHAWAY ENERGY COMPANY applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (the Act).

In its Form CNA1, in response to question 13: “Why do you object to the registered company/limited liability partnership name?” the applicant states:

The company is registered with the name “Berkshire Hathaway Inc Ltd.” and has fraudulently registered Mr Buffett as a director. This amounts to use of a sign identical to the Trade Mark that may be prohibited under s.10 of the Trade Marks Act 1994. It is apparent from the occupations of the listed directors, including Mr Buffett, that the intention is to operate in the financial services sector……….. Further, the company is taking unfair advantage of Berkshire Hathaway’s reputation in the Trade Mark and its use is detrimental to the distinctive character or repute of the Trade Mark is likely to cause significant damage to the Trade Mark. Therefore, this also constitutes trade mark infringement under s.10(3) of the Act.

On 18 May 2021, the Tribunal wrote to the parties noting this section of the applicant’s Form CNA1 and notified the applicant that there is an ‘operating defence’ under section 69(4)(b)(i) of the Companies Act 2006 (“the Act”). It was noted that applications to the Company Names Adjudicator are neither an alternative nor an equivalent to an action for infringement or passing off. As the applicant appeared to be claiming that the respondent was ‘operating’, the Tribunal gave a preliminary view that the application should be struck out.

In it’s response, on 25 May 2021, the applicant stated:

..The ultimate owner of our client is Berkshire Hathaway., Inc, a US domiciled entity incorporated by Mr Warren Buffet. As noted in our application, the Respondent has also registered someone with the same name and date of birth as our client’s Mr Buffet as a director. Our understanding from your letter is that your primary concern arises from section 69(4)(b)(i) of the Companies Act 2006 …. Reading (section 69(5))… in line with section 69(4), our understanding is that it is for the Respondent to establish the facts set out in section 69(4), before section 69(5) comes into question. We have not seen copy of any counterstatement filed by the Respondent. Further, our own searches have not revealed any indication of the Company trading or operating under the name.

The applicant requested the Tribunal confirm whether their comments change the adjudicator’s initial view, and if so, whether their application could proceed in the light of the absence of a counterstatement from the Respondent. The applicant requested to be heard on the matter if the adjudicator’s initial view remained unchanged.

On 7 June 2021, the Tribunal wrote to the parties to clarify the Tribunal’s position, indicating that the applicant’s Form CNA1 does not specify any grounds under section 69 of the Companies Act, and by claiming trade mark infringement appeared to accept that the respondent is trading. It noted that if the respondent is trading, the applicant may still rely upon a claim under section 69(5) of the Companies Act, however, the pleadings contained no such claim.

In response, on 10 June 2021, the applicant amended their Form CNA1 and a copy of the amended application was sent by the Tribunal to the primary respondent’s registered office on 16 June 2021. The parties were notified of the Tribunal’s preliminary view to admit the amended Form CNA1 into the proceedings. The respondent was granted a period of 7 days to request a hearing in relation to this matter if they disagreed with the preliminary view. No request for a hearing was made.

A copy of the amended application was sent to the primary respondent’s registered office, 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 “not at this address”. Also, on 16 June 2021, the Tribunal wrote to Richard Fletcher to inform him that the applicant had requested that he be joined to the proceedings. The letters sent to Richard Fletcher by Royal Mail “Signed For” service and standard mail were returned “not at this address”. No comments were received from Richard Fletcher in relation to this request. On 1 December 2021, Richard Fletcher was joined as a co-respondent. On 1 December 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. The letters sent to the primary respondent by Royal Mail “Signed For” service and standard mail were returned “no longer at this address. RTS”. The letter sent to the co-respondent by Royal Mail “Signed For” service was returned “no longer at this address. RTS” No request for a hearing was made.

The primary respondent did not file a defence within the one 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) BERKSHIRE HATHAWAY INC 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) BERKSHIRE HATHAWAY INC LTD and Richard Fletcher each shall:

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

(ii) not 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.

BERKSHIRE HATHAWAY ENERGY COMPANY, having been successful, is entitled to a contribution towards its costs. I order BERKSHIRE HATHAWAY INC LTD and Richard Fletcher being jointly and severally liable, to pay BERKSHIRE HATHAWAY ENERGY COMPANY 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 20 January 2022

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. ↩