Decision

Decision on Botanica Ltd

Updated 21 July 2023

Companies Act 2006

In the matter of application No. 3294 by Botanica Agriculture and Extraction Ltd for a change to the company name of Botanica Ltd, company registration no. 12562150

1. Company 12562150 (“the primary respondent”) was incorporated on 17 April 2020 with the name Botanica Ltd. On 29 September 2020, an application was made to this Tribunal under section 69 of the Companies Act 2006 (“the Act”). Although we shall return to the identity of the applicant later in this decision, we note that box 3 of the Form CNA1 which reads: “Name and address of the applicant”, was completed in the following manner:

Sembu Gbla – Botanica Agriculture and Extraction Ltd, 17 Trafalgar Road, Clacton-on-Sea, Essex, United Kingdom, CO15 1LR.

2. 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 these 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.”

3. In the application (completed by Mr Sembu Gbla), it was requested that the primary respondent’s secretaries/directors, namely Aman Dulay, Atul Sharma and Sandeep Singh Varaich be joined to the proceedings under the provisions of section 69(3) of the Act. The named individuals were given notice of this request and an opportunity to comment or to object. As the Tribunal received no comments or objections they were joined to the proceedings as co-respondents on 4 February 2021 and made jointly and severally liable with the primary respondent for costs.

4. In response to question 10 on the Form CNA1 which reads, “What is the name associated with you which has caused you to make this application?”, it is stated:

Botanica Agriculture and Extraction Ltd is the full name of our company, the company has also recently registered Botanica Pharmacueitics [sic] Ltd due to the threat posed by the formation of Botanica Ltd.

5. In relation to “goodwill or reputation” (question 11 on the Form CNA1), it is stated:

The company has worked extremely hard to develop a strong brand reputation and good social presence. We are now registered in four countries and counting, and are recognised by our trading name (which is the prefix of our full name) Botanica. The company has research partnerships pending with the University of Westminster life science department and UCL. These are, of course, relationships we worked very hard to develop and do not wish to jeopardise. We are also working very hard to acquire various licences abroad which will benifit [sic] our UK based business tremendously, the situation at present however remains highly sensative [sic] and any ambiguity such as this may cause irreparable damage to our brand which has taken many years to develop.

6. It is stated that that the field of business in which the names relied upon have goodwill/reputation is:

Life sciences, pharmaceutical preperation [sic], cultivation of medicinal crops.

7. it is stated that the company name is objected to because:

Careful investigation has revealed severe concerns about the credibility, integrity and conduct of the defendants as they both display some very perculiar [sic] online activity. A company Mr Sharma was recently appointed director of Sappire Independant Finance Limited has overdue accounts even though the appointment was only made this year. Scott Thomas Findlay who was supposedly born in June 1988 resigned on the 3rd of July 2020 and was replaced by Mr Sharma. What is most peculiar about this is that the two gentleman seem to share the same personal address. Which of course may give rise to the consideration that this name, may in fact simply be an allias [sic] used by Mr Sharma. Scott Thomas Findlay was actually a rifleman in the Auckland war who died in September 1916. Sandeep Singh is the director of another company, Property No.6- which in 5 years has only reported losses, on the 1st of September he started another business, the spice fox, which is in the catering industry. The true occupation of this individual is not known in addition to being involved in catering this individual has also declared himself a property investor and now a pharmacist. Most respectfully, above is the clear activity of fraudsters, as such the company wishes to have no affiliation with any persons concered [sic].

8. In response to questions 15 and 16 on the Form CNA1 which read “What action do you want the Tribunal to take?” and “Please provide any other relevant information you may have that you consider relevant to this application” respectively, it is stated:

For Botanica Ltd to be dissolved or instructed to change their name so that the defendants are not able to claim association with our group. Botanica Ltd appearing as dissolved on the register is also not ideal as this may give rise to further confusion where our brand name is concerned. With this being said a complete removal of the listing would be ideal so as to avoid any confusion in the future. It would indeed be bizzare for there to be two pharmaceutical companies, both based in the UK, both called Botanica. Furthermore, the above may lead to a situation where an automatic assumption is made, whereby Botanica Ltd is considered to be part of our group. For obvious reasons, it is crutial [sic] for the company to mitigate any chance of this being possible for the opportunists. We are also very concerned that they may continue carrying out their fraudulent activities while using our name and we have no means of doing anything to prohibit them from what they are doing. The action of them forming Botanica Ltd is considered by us to be a case of Corporate Idententity [sic] Fraud.

And:

It is our clear understanding that the individuals concerned are opportunists who registered Botanica Ltd after seeing us online, with the intention of trying to use our brand name/reputation for their financial gain and/or to prevent us from later acquiring the name for ourselves. With respect I believe it would certainly seem to be an ill willed move on their part in either case.

9. It is stated that costs are being sought and in response to question 7 on the Form CNA1 which reads:

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?,

it is further stated:

We have not made any contact with the individuals due to several highly concerning truths which have been discovered about them. We have appealed with Companys [sic] House and recently heard back from a case manager in the breaches team. Unfortunately however, there were some complications with regard to instructing a change of name under section 67(1).

The defence

10. On 17 December 2020, the primary respondent filed a notice of defence (signed by Atul Sharma). Mr Sharma states:

” Every statement made by Mr Sembu Gbla is inaccurate, unjustified and some instances contradictory based on how he seems to interpretate [sic] his areas of concern. We deny every part of his claim.

We are very disappointed to have received correspondence from the claimant, specifically as to how you can make a charge for filing a defence when we followed all legal channels in setting up our company. There is no evidence of any wrong doing, and the allegations raised.

Prior to setting up the company, companies house was researched to determine the name of our company was available, and we have set about the usual and legal process in setting up this company. The names and addresses filed are accurate with no wrong doing having taken place…”

11. Mr Sharma asks for a range of allegations made in the Form CNA1 which relate, broadly speaking, to the business being relied upon and the claims made in relation to, inter alia, himself and Messrs. Varaich and Findlay to be proved. Attached to the Form CNA2 are four appendices, to which we shall return below. Insofar as the business being relied upon is concerned, we note that the primary respondent asks for proof of the following:

“1). Registrations details of the 4 countries they are working in, as Botanica with dates preceding the 12th Nov 2019 if possible.

2) Proof of pending Partnership with Westminster University and ULC under the name of Botanica, Email trails with date and or such proof would be sufficient. Any sensitive information can be censored.

3) Contact details for a person with significant authority to prove a pending partnership is in the pipeline as Botanica.

4) Proof of strong social presence as Botanica with a time stamp. Preferably for dates preceding 12th Nov 2019 and for the years of brand building?”.

12. In its Notice of Defence, the primary respondent indicates that it is relying upon defences based upon sections 69(4)(a), (c), (d) and (e) of the Act. It further indicates that it is claiming its costs.

13. In these proceedings, both parties represent themselves. The only evidence filed during the evidence rounds was from Mr Gbla. However, as this Tribunal routinely looks for guidance to case law developed in trade mark proceedings to assist it, given the comments of the Appointed Person, Mr Daniel Alexander Q.C., in “SIMMONS” trade mark (BL-O-468-12) and as the Form CNA2 was signed by Mr Sharma who is a secretary/director of the primary respondent, we intend to treat his pleadings and the appendices attached to that Form as evidence.

14. The parties were asked if they wanted a decision to be made following a hearing or from the papers. Neither party requested a hearing, nor did they elect to file written submissions in lieu of attendance.

Evidence

The primary respondent’s evidence

15. The following appendices were attached to the Form CNA2:

1 – this consists of details obtained from Companies House in relation to Botanica Agriculture and Extraction Ltd. This shows that company no. 11020673 was originally incorporated under the name ACAS INTERNATIONAL LTD with the change to its current name being agreed by special resolution on 11 November 2019;

2 – of this exhibit Mr Sharma states: “There is a website under the name of www.botanicamedicare.co.uk which is linked to his companies. That website is not live and is under construction, which is to be made live in JAN 2021, as suggested by the page….”

The page provided from the website mentioned contains a printing date of 17 December 2020. It contains the word “Botanica” at the top left hand side of the page and the following text: “This website is under construction and will be live in January 2021 - Thank you for visiting” and “Botanica MediCare a devision of Botanica Pharmaceutics goes by the trading name Botanica, and forms part of the Botanica Agriculture and Extraction Ltd (UK) Group, registered in England and W…Companies Act 2006. Companies House Registration No. 11020673. Copyright © 2020. All rights reserved”;

3 – is said to be a page from botanicamedicare’s Instagram account. It contains a printing date of 17 December 2020 and looks like this:

4 – in relation to this page (which also contains a printing date of 17 December 2020), Mr Sharma states:

Furthermore after checking the domain for www.botanicamedicare.co.uk. It states that the domain is was only brought recently as there is no recent date of when this domain was brought or made active yet. Which yet again makes me question the integrity and legitimacy of this claim…[all sic].

Mr Gbla’s evidence

16. This consists of a witness statement, dated 30 March 2021. Mr Gbla is a director of Botanica Agriculture and Extraction Ltd. He confirms the source of information in his statement is “personal knowledge & company records.” A good deal of this statement contains submissions rather than evidence of fact. Although we will only record evidence of fact here, for the avoidance of doubt, we have read the statement and will bear its contents in mind when reaching a conclusion. Insofar as appendix 2 to the Form CNA2 is concerned (in relation to the domain name botanicamedicare.co.uk), Mr Gbla explains that this “is an old domain no longer is use”, adding that botanicapharmaceutics.co.uk. is the new domain name.

17. In relation to the Instagram account, he states:

6. The reputation to which we refer is one which has been established with prospective clients in our field. Relevant consumers to our business will be licensed pharmaceutical manufacturers only and as such, the company has no interest in developing a presence directed toward members of the general public.

18. Exhibit 1 consists of details obtained from the Companies House website in relation to Botanica Agriculture and Extraction Ltd and to company no. 12899845 “Botanica Pharmaceutics Ltd” which was incorporated on 23 September 2020. We note that Mr Gbla is a director of both companies.

19. Exhibit 2 is said to provide “Confirmation of incorporation in the Netherlands (complete)”. The page provided (the source of which is described as “Email from Westerdok Notary”) is addressed to Mr Gbla, is dated 19 November 2020 and includes the following: “Your company is established and registered…”. The page provided refers to “…Botanica Pharmaceutics B.V.”

20. Exhibit 3 (from the Corporate Affairs Commission, Sierra Leone), indicates that “Botanica Agriculture and Extraction Limited” was registered in Sierra Leone on 3 September 2020.

21. Exhibit 4 consists of what appears to be part of a contract between Botanica Agriculture and Extraction Ltd (with an address in the UK) and a lawyer (whose name has been redacted) in relation to a:

“Legal opinion on the German legal framework and preconditions for import of medical cannabis, international obligations, EU-GMP, contact with BfArM etc.”

Also provided is what is described as a “retainer invoice” dated 26 August 2020 (in the amount of €2500) issued to Botanica Agriculture and Extraction Ltd (at an address in the UK), in relation to “our fees contract…from 26th of August 2020, 10h, as from 8/26/20.”

22. Exhibit 5 consists of an email exchange between “Sembu Gbla Botanica” and an individual from a “Portuguese Law firm” (whose name has been redacted). It appears that Mr Gbla’s email was dated 3 November 2020. It reads:

Dear xxx thanks for this. It was indeed a pleasure talking with you. We look forward to working with you also and will be in touch in due course.

23. The response from the unnamed individual (which appears to be dated 3 February 2021) reads:

” Dear Sembu,

I hope you are doing well. I wonder if you have any developments on your decision to incorporate in Portugal…”.

Mr Gbla adds that this process was “…delayed by Covid-19.”

24. Exhibit 6 consists of an email exchange between Mr Gbla and a “Senior Lecturer in Molecular Pathology” at the University of Westminster whose name has been redacted. The title of the email exchange is “University of Westminster – Research partnership proposal.”

25. On 26 February 2020 Mr Gbla wrote to the unnamed individual stating:

Dear Dr xxxx. Please find attached correspondence which we hope will be of interest to you…”

26. The unnamed individual responded to Mr Gbla on the same date stating:

” Dear Sembu,

Thank you for the email, this sounds a good opportunity and I am copying our office for research partnerships in at this point to discuss further…”

27. Exhibit 7 consists of what Mr Gbla describes as “our brand logo.” The two undated images provided consist of the word “Botanica” presented in title case in the colour blue and the same word presented in the colour white against a blue rectangular background.

28. That concludes our summary of the evidence filed to the extent we consider necessary.

Decision

The identity of the applicant

29. As we mentioned earlier, both parties in these proceedings are unrepresented. For the sake of convenience, we remind ourselves that box 3 of the Form CNA1 which reads: “Name and address of the applicant” was completed in the following manner:

Sembu Gbla – Botanica Agriculture and Extraction Ltd, 17 Trafalgar Road, Clacton-on-Sea, Essex, United Kingdom, CO15 1LR.

30. We note that in its correspondence to the parties, the Tribunal has identified the applicant as being “Sembu Gbla”. However, we further note that the Form CNA1 includes the following phrases: “The company has worked extremely hard…” (question 11), “The company has research partnerships…”, (question 11), “it is crutial [sic] for the company to mitigate…” (question 15) and “is considered by us to be a case of corporate Idententity [sic] fraud…” (question 15). We have added the underlining. Consequently, when considered as a totality, we are satisfied that as Mr Gbla completed the Form CNA1 (and as he is an officer of Botanica Agriculture and Extraction Ltd), it is palpably clear that the applicant in these proceedings is Botanica Agriculture and Extraction Ltd and not Mr Gbla personally. It is upon that basis we intend to proceed.

31. If the primary respondent defends the application, as here, the applicant must establish that it has goodwill or reputation in relation to a name that is the same, or sufficiently similar, to that of the primary respondent’s name suggesting a connection between the applicant and the primary respondent. If this burden is fulfilled, it is then necessary to consider if the primary respondent can rely upon defences under section 69(4) of the Act.

32. Before proceeding, we think a chronology of what appear to be the key events in these proceedings may be helpful. This, in our view, is as follows:

Chronology

18 October 2017 – applicant incorporated in the UK as ACAS INTERNATIONAL LTD;

11 November 2019 – applicant’s name changed to Botanica Agriculture and Extraction Ltd;

26 February 2020 – email exchange with the University of Westminster regarding a research partnership proposal;

17 April 2020 – Botanica Ltd incorporated in the UK i.e. the primary respondent;

August 2020 – agreement between Botanica Agriculture and Extraction Ltd and a German lawyer;

3 September 2020 – Botanica Agriculture and Extraction Limited registered in Sierra Leone;

23 September 2020 – Botanica Pharmaceutics Ltd incorporated in the UK;

3 November 2020 – initial enquiries regarding incorporation in Portugal;

19 November 2020 – Botanica Pharmaceutics B.V. incorporated in the Netherlands.

What names is the applicant relying upon?

33. In its application, the applicant identifies Botanica Agriculture and Extraction Ltd and Botanica Pharmacueitics Ltd as the names which has caused it to make its application. Notwithstanding the misspelling, we are satisfied given the information provided in exhibit 1 to Mr Gbla’s statement, that this should have read Botanica Pharmaceutics Ltd. The applicant also states:

Botanica Agriculture and Extraction Ltd is the full name of our company…” (response to question 10);

And:

We are now registered in four countries and counting, and are recognised by our trading name (which is the prefix of our full name) Botanica…” (response to question 11).

34. Having reviewed the evidence as a totality, it is clear that the applicant should also have identified “Botanica” solus when it responded to question 10. However, it appears that the primary respondent was fully aware of this when, in its Form CNA2, it asked for proof the applicant is working “as Botanica”, “under the name of Botanica…”, “is in the pipeline as Botanica” and has “strong social presence as Botanica.” As a consequence, we shall proceed on the basis that the applicant is also relying upon the word “Botanica” solus. The applicant must show that it had a goodwill or reputation at the date mentioned which is associated with one or other of the names indicated.

Does the applicant have the necessary goodwill/reputation?

35. The relevant date is the date of incorporation of the primary respondent which, in this case, is 17 April 2020. Section 69(7) of the Act defines goodwill as a “reputation of any description”. Consequently, in the terms of the Act it is not limited to Lord Macnaghten’s classic definition in IRC v Muller & Co’s Margerine Ltd [1901] AC 217: “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.”

36. In relation to establishing a goodwill/reputation, as we mentioned earlier, this Tribunal routinely looks for guidance to case law developed in trade mark proceedings. In such proceedings, it is well-established that goodwill of more than a trivial nature, even if it is small, is capable of protection (Stacey v 2020 Communications [1991] FSR 49 refers). In his evidence, Mr Gbla states:

9…the initial establishment of our brand with the formation of Botanica Agriculture and Extraction…

37. That, in our view, is an admission that there was no use of any of the names being relied upon (particularly Botanica solus) prior to the date the applicant changed its name from ACAS INTERNATIONAL LTD to its current name i.e. 11 November 2019. However, even if such use had been made, as no evidence has been provided in this regard, it is not a matter upon which the applicant may now rely. Thus, it appears that at best, the applicant’s use of some of the names being relied upon commenced only five months before the primary respondent was incorporated in April 2020.

38. We note that the primary respondent requested certain evidence in its notice of defence. We also note that the applicant questioned the legitimacy of the primary respondent’s request for information about “the affairs of our brand”. Whilst it is true that the respondent(s) cannot dictate the evidence which should be filed by the applicant, there remains a burden on the applicant to establish before the Tribunal that it has goodwill/reputation in one or more of the names being relied upon. Whilst that is a relatively low hurdle, we would normally expect to see that prior to the relevant date the applicant had made outward-facing use of one or more of the names being relied upon, together with, for example, an indication of the number and types of customers the applicant enjoyed, turnover figures achieved and promotional efforts.

39. Although the applicant has provided evidence to show that it has arranged for various companies to be incorporated which contain the word “Botanica” and has engaged a lawyer in Germany, as one can see from the above chronology, all the evidence in this regard is from after the relevant date. In addition, the evidence filed by the primary respondent which relates to a website which was not to be made operational under January 2021 and an Instagram account when can only be dated from December 2020, does not assist the applicant in establishing a goodwill/reputation in one or other of the names being relied upon at the relevant date.

40. As far as we can tell, the only evidence that has been provided that can be dated prior to the relevant date is the redacted email exchange between Mr Gbla and an individual at the University of Westminster regarding a “Research partnership proposal” (exhibit 6), which is dated 26 February 2020. Although this exhibit contains an upper case letter “B” on the left hand side of the page, it does not appear to contain any references to any of the names being relied upon. Nor does it indicate the nature of the proposed research partnership. However, even if it did, without more, a single example of use of this nature falls a long way short of meeting even the relatively low hurdle necessary for the applicant to establish that at the relevant date it had goodwill/reputation in the name “Botanica” solus or any of the other names being relied upon.

41. Without the necessary goodwill/reputation, the application falls at the first hurdle and is dismissed accordingly.

Outcome

42. The application has failed and, subject to any successful appeal, the primary respondent’s name will remain as Botanica Ltd.

Costs

43. As the primary respondent has been successful, it is entitled to a contribution towards it costs, based upon the scale of costs published in paragraph 10.1 of the Practice Direction which, we note, contains the following:

Those without representation will normally receive 50% of the above but will receive the full expenses.

44. Proceeding on that basis, the primary responded is entitled to an award in the amount of £350 i.e. £200 in respect of its reviewing of the application and the preparation of its defence and £150 in respect of the official fee associated with that defence.

45. We order Botanica Agriculture and Extraction Ltd to pay to Botanica Ltd the sum of £350 within 21 days of the expiry of the appeal period, or within 21 days of the final determination of this case if any appeal against this decision is unsuccessful. Under section 74(1) of the Act, an appeal can only be made in relation to the decision to dismiss the application; there is no right of appeal in relation to costs.

46. Any notice of appeal against this decision 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.

47. The company adjudicator must be advised if an appeal is lodged, so that implementation of the order is suspended.

Dated 3 November 2021

Christopher Bowen
Teresa Perks
Heather Harrison
Company Names
Adjudicator