Decision

Decision on Electric Aviation Group Ltd

Published 7 July 2022

Companies Act 2006

In the matter of application no. 3237 for a change of company name registration no. 10936437

1. This decision concerns company name registration number 10936437. The company was incorporated on 29 August 2017 with the company name ADVANCED MOBILITY RESEARCH AND DEVELOPMENT LTD. However, the company name was changed on 14 July 2020 to ELECTRIC AVIATION GROUP LTD (“the primary respondent”). On 3 August 2020, an objection was made to the company name by an application filed under section 69 of the Companies Act 2006 (“the Act”). The name of the applicant is given on the form CNA1 as “Dr Chris Crockford, Electric Aviation Limited”.

2. Mr Kamran Iqbal, who is a director of the primary respondent, has been joined to the proceedings as a co-respondent in accordance with s. 69(3) of the Act.

3. In answer to the question, “what is the name associated with you which has caused you to make this application”, the response is “Electric Aviation Limited”. The goodwill or reputation relied upon is said to be in the field of drone and autonomous electric vehicle flight systems, infrastructure and algorithm support. I note in particular that “the company” is said to have:

• developed an interactive flight simulator for drone flights;
  
• designed drone landing pads;
  
• partnered with Cranford University for the development of a drone simulator project;
  
• signed development agreements with Apian Limited, representing NHS England, for drone projects;
  
• signed development agreements with GoodSamApp to provide a platform enabling the use of drones in search and rescue scenarios;
  
• developed the “Operational Safety Case to fly Beyond Visual Line of Sign drones with regards biohazard transportation” with the CAA;
  
• worked with Skylift UAV to develop the Coastal Ship to Shore Drone delivery Service, applying for UK government funding;
  
• made a number of applications for funding for drone projects;
  
• presented papers at the Royal Aeronautical Society on Unifying Video Imagery for Urban Warfare; and
  
• developed Standard Operating Procedures for Drones operating alongside air ambulances at NHS sites

4. The applicant says that the name “Electric Aviation Group Ltd” is sufficiently similar to the name “Electric Aviation Limited” that its use in the UK would be likely to mislead by suggesting a connection between the respondents and the applicant where none exists. The applicant asks that the name be removed from the Companies Register and be changed to a name which is not offending.

5. The primary respondent filed a notice of defence denying all of the applicant’s claims. In particular, it denies that the applicant has goodwill or a reputation in the name “Electric Aviation Limited”, pointing out that that company was only incorporated in February 2020 and that its website was registered the same month.

6. The respondents initially relied upon all of the defences available to them; they now rely on the defences under ss. 69(4)(b), (c), (d) and (e) of the Act.

7. Both parties filed evidence. Both also filed submissions with their evidence. Neither party requested a hearing but both filed written submissions in lieu. This decision is taken following a careful reading of all of the papers.

8. The applicant is represented by Slingsby Partners LLP. The respondents are represented by Barker Brettell LLP. Both parties seek an award of costs.

Evidence

9. The applicant’s main witness is Dr Chris Crockford, the sole director and secretary of Electric Aviation Limited, who has provided two witness statements. Dr Crockford has held his position since 11 February 2020. Dr Crockford’s evidence goes mainly to the use which has been made of the name relied upon. There is also some evidence of correspondence between the parties prior to the change of the primary respondent’s name and of an alleged example of confusion.

10. In addition, there are witness statements from a further 13 individuals, which are exhibited to Dr Crockford’s first witness statement. Some of these statements have accompanying exhibits. These witnesses are:

• Justin King, a partner at Concerto Partners LLP, a business consultancy firm
  
• Toby Moores, of Skylift UAV
  
• Hugh Wyeth, a 3D artist
  
• Robert Berry of the MHS Kent Surrey Sussex Academic Health Science Network
  
• Jonathan Parker, a Director at FLYBY Technologies Limited/DAC UK Limited, which trained Electric Aviation Limited to fly drones
  
• Christopher Moore, who is the President- Business Aviation at Satcom Direct, Inc
  
• Alan Ayres, of Alan Ayres Associates, who is a Technical Consultant
  
• Ian Lomas, a Technical Project Manager at Digital & Future Technologies Ltd
  
• Tristram Cary, the Chairman of Geoxphere Ltd
  
• William Maden, Research Director of Miralis Data Ltd
  
• Dominic Williams, Creative Director of Digitap Ltd
  
• Peter Gibbs, a freelance Meteorological Consultant
  
• Richard Ryan, barrister and Head of Chambers of Blakiston’s Chambers, Perth

11. Mr Wyeth’s and Mr Gibbs’ witness statements are not signed and are hearsay, though their evidence, which includes exhibits, is filed under cover of Dr Crockford’s statement. The above witnesses all detail their first discussions with, or their first introduction to, Electric Aviation Limited, and any subsequent dealings.

12. The respondents’ evidence is given by Kamran Iqbal, a director of the primary respondent. Mr Iqbal gives evidence about the primary respondent, its history and the decisions about the change of name.

13. None of the witnesses was cross-examined. I have read all of the evidence. I do not intend to summarise all of it. I will refer to the relevant parts, as necessary, below.

Additional evidence and submissions

14. Both parties also filed “evidence” after the conclusion of the evidence rounds. None of this was in proper evidential format, nor was it accompanied by the proper form and fee. The parties were advised that, absent properly formulated requests for permission to file additional evidence, this material would not be taken into account. No such requests have been received and it is disregarded accordingly. Submissions were also filed by both parties, the applicant’s submissions being in response to evidence and submissions filed by Mr Iqbal directly with the tribunal. Whilst it is plainly inappropriate for a represented party to circumvent their legal representatives and make direct contact with the tribunal, it appears that Mr Iqbal was told the same on each occasion and was informed that his correspondence would be ignored. Consequently, I need make no further reference to the content of Mr Iqbal’s correspondence or the applicant’s response to it.

Legislation

15. Section 69 of the Act reads:

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

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

• 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-

• that the name was registered before the commencement of the activities on which the applicant relies to show goodwill; or
  
• 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; or
  
• 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
  
• that the name was adopted in good faith; or
  
• 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.

Identity of the applicant

16. The requirement in s. 69(1) of the Act is that the primary respondent’s name is the same or sufficiently similar to the name “associated with the applicant in which he has goodwill”. The application form identifies Dr Chris Crockford of Electric Aviation Limited as the applicant. However, the name relied upon is identified as that of a limited company, “Electric Aviation Limited (12456999)”. This company was incorporated on 11 February 2020. I note the claim in Dr Crockford’s evidence that there was use of “Electric Aviation” from 23 January 2020. However, it would usually be inferred that on creation of the limited company, any goodwill would be transferred to the company along with the business previously conducted under a different trading arrangement. In the absence of evidence to paint a different picture, it appears that Dr Crockford cannot claim personally the benefit of any goodwill owned by Electric Aviation Limited.

17. Notwithstanding the above, the respondents, who are professionally represented, have not called into question the right of Dr Crockford to rely on the goodwill claimed. I also note that Dr Crockford was not legally represented at the time of filing the form CNA1. Rule 6(2) of the Company Names Adjudicator Rules 2008 appears to allow adjudicators the power to direct that a party be joined as a joint applicant. The relevance of Electric Aviation Limited has been plain to the respondents since the start of proceedings and it is difficult to see what prejudice there would be to the respondents if I were to direct that Electric Aviation Limited be joined as an applicant. I am, therefore, minded to direct that Electric Aviation Limited be joined to proceedings. I will examine the claim on the assumption that Electric Aviation Limited will be so joined. This means that one or other of the applicants would own any goodwill or reputation relied upon.

Goodwill

18. Section 69(7) of the Act defines goodwill as a “reputation of any description”. Consequently, in the terms of the Act goodwill is not limited to Lord Macnaghten’s classic definition in IRC v Muller & Co’s Margarine 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.”

19. There is no dispute that the relevant date is the date on which the primary respondent’s name was adopted, i.e. 14 July 2020. The applicant must show that at that date it had goodwill or a reputation associated with the name “Electric Aviation Limited”.

20. The respondents have submitted that at least five years’ use is required to show the necessary customer recognition of goodwill or a reputation. No authority is cited for this proposition. I am not aware of any provision of legislation or case law which prescribes a minimum period for the accrual of goodwill or a reputation. So far as I am aware, there is no such requirement for establishing goodwill in passing off law; indeed, in the well-known case of Stannard v Reay [1967] FSR 140 (ChD) it was held that three weeks’ trading may be sufficient for the creation of a protectable goodwill. I see no basis for applying a considerably more stringent assessment to the question of goodwill or “a reputation of any description”. That is particularly the case as a “reputation of any description” has a wider meaning than the traditional definition of goodwill in passing off. Having said that, the longer a name has been used, the more likely it will be that sufficient goodwill or reputation has been established. The respondents argue that the applicant must show goodwill or reputation of commercial significance. I accept that submission. The Act provides companies which have a legitimate interest in a company name with a method of preventing other parties from registering the name or demanding payment to release it. It seems to me that such a legitimate interest requires more than a trivial goodwill or reputation.

Evidence of goodwill or reputation

21. Although there is some evidence from November and December 2019, Dr Crockford appears to accept that this took place under a different company name. In any event, “Electric Aviation Limited” is not visible in the related exhibit, which describes a workshop for the government’s “Future Flight Challenge”.

22. The domain names Electric-Aviation.aero and ElectricAviation.aero were registered on 30 January 2020. Dr Crockford says that they initially went live with a holding site. The design of the electricaviation.aero website was commissioned on 19 February 2020. The logos for Electric Aviation Limited were commissioned in April 2020. The words “ELECTRIC AVIATION” are prominent in these logos. Dr Crockford’s evidence is that there were discussions with Mr Wyeth on 13 February 2020 about creating a promotional video for Electric Aviation Limited, which would concern the use of electric aircraft in towns. Dr Crockford’s email to Mr Wyeth on 13 February 2020 says that he is “trying to visualise and design the urban airspace around towns”. The script was forwarded to Mr Wyeth on 25 February 2020. There were discussions with Alan Ayres about the script for the promotional video around the same time.

23. Dr Crockford says that Electric Aviation Limited attended the “Future Flight Challenge” conference in Birmingham on 4/5 February 2020, where he discussed and presented the “GUTMOE” (sic) project to 160 delegates from the aviation industry. He says that he took “valuable feedback” from this conference and formed the FUSE project. “FUSE” stands for “Future Urban Synthetic Environment”. This appears to be a simulation of an urban environment for modelling drone activity.

24. The name “Electric Aviation Limited” was used in discussions with Mr Moores of Skylift UAV in February 2020. Mr Moores explains that he was first sent a prospectus for the FUSE project in April 2020. There are copies in the evidence of a prospectus issued to others at the same time which show the “ELECTRIC AVIATION” logo throughout. The project was submitted to the UK government’s Future Flight Challenge on 1 July 2020 and a grant was awarded in August 2020. The project appears to relate to UAVs to be flown at Cranfield airport from 2021. The application was a collaboration between Cranfield University, Geoxphere and Electric Aviation Limited; other companies also had some involvement. In an email from 21 April 2020, Dr Crockford mentions “support” from Bath and NE Somerset Councils but it is not clear what this means.

25. Mr Moores also says that “we would go on to provide drones, routing and landing facilities for the NHS COVID-19 flights for Mid and South Essex NHS Foundation Trust together throughout 2020”. In this context, “we” appears to mean Electric Aviation, Skylift UAV and a company called Apian Limited, along with other companies. The article discussing this project is dated 17 October 2020. It says that Apian Limited “is installing dronepad infrastructure so that its aircraft can take off from and land onto hospitals […]” and that “it will scale the work from their drone trials”.

26. Skylift and Electric Aviation Limited submitted an unsuccessful application for coastal drone projects to the Future Flight Challenge in July 2020. It appears that the same submission was made to the Sustainable Innovation Fund but no date is given. Dr Crockford details other unsuccessful bids for funding for different projects made in May 2020 and July 2020, followed by another, successful, bid to the Sustainable Innovation Fund in September/October of the same year. There is also evidence of a joint initiative with GoodSAM to develop a platform which links drone operators with search and rescue services.

27. There is evidence from Mr Ayres and Mr Lomas that they undertook activities on behalf of Electric Aviation Limited regarding drone landing infrastructure between March and December 2020. These included site visits on 18 June 2020 to a pathology laboratory in Basildon and a visit to a Chelmsford hospital for a site survey and inspection of potential landing zones. Drone landing infrastructure was installed at the Chelmsford site between 22 and 26 September 2020.

28. Electric Aviation Limited was discussed with Robert Berry of the NHS Kent Surrey Sussex Academic Health Network on 13 February 2020. Mr Berry says that this was in relation to the potential for drones to assist the NHS. An email exchange between Dr Crockford and Mr Berry shows that “drone delivery” was mentioned and that Mr Berry indicates his willingness to have discussions to “stress test ideas”. Although Dr Crockford says that he has “started an electric aviation business”, the name Electric Aviation limited is not visible in the exchange; Dr Crockford’s email address contains a Cardiocity.com domain name. Mr Berry does say that they worked together and submitted a project to the UK government’s Small Business Research Initiative on 4 November 2020 (the bid was unsuccessful).

29. Dr Crockford says that on 14 February 2020 the company was approached by a research fellow at the University of Nottingham’s Faculty of Engineering, asking it to join the Nottingham University “FFC [Future Flight Challenge] aviation project”. There is no supporting documentary evidence. On 3 March 2020, Andrea Pisoni of Overseas Capital Contest emailed Dr Crockford saying that “we are setting up the consortium on the Flying Emergency First Aid use case. I would like you to be part of it”. Dr Crockford says he is interested in joining the consortium and contributing “a synthetic simulated environment”. It appears from the evidence that Electric Aviation Limited would be identified as the party providing the synthetic environment.

30. There is evidence dated 18 February 2020 of an approach by Dr Crockford to Mr Parker (of FLYBY Technologies/DAC UK Limited).Dr Crockford asks for assistance in understanding the drone market. He says that FLYBY/DAC trained Electric Aviation Limited to fly drones. Parts of an operations manual which include the name “Electric Aviation Limited” are in evidence; the manual is dated January 2021.

31. Electric Aviation Limited worked with Geoxphere to develop the Electric Airspace portal. A grant was awarded on 2 October 2020 for further works on this. A company called Miralis Data Limited is a subcontractor on the project and is developing flight routing algorithms for the portal with Electric Aviation Limited.

32. Dr Crockford also approached a company called Satcom Direct Inc. on 24 February 2020. His enquiry was for information about drones (e.g. the smallest communications payload possible). The evidence details introductions or approaches to a number of other individuals and companies from January 2020. Dr Crockford says that NHS Highland sent him some patient transport data for flight modelling. It is said in relation to an introduction to Medeus Ltd that “My Company will go on to provide consulting for their flight works” and that on 25 April 2020 Medeus asked for “help with their proposal for the UK Space Agency”. For the vast majority of the contacts detailed, however, there is no indication that any purchase of services resulted. Dr Crockford mentions in one email a “local authority client” but it is not clear either who this is or whether they have bought services from Electric Aviation Limited. Another email says that a city council is “on board” but it is not clear whether this means that they are a customer of Electric Aviation Limited. In the same email he says that “I would hope to have a potential paying customer prior to submission” to the Future Flight Challenge.

33. Mr King says that he was first introduced to Electric Aviation Limited on 3 January 2020. He does not explain how or why this introduction took place. An email shows that he forwarded some details of a third party to Dr Crockford on the same date. Mr King says that his company has “promoted Electric Aviation and we have included and considered their solutions for numerous government and private sector contracts alike”. He says that promotion of Electric Aviation Limited’s “technological solutions” has continued. Dr Crockford also provides an email from Iain Gray, Director of Aerospace at Cranfield University. It concerns Professor Gray’s reaction to a draft application for something called the “Flying Circus” application, which appears to have been submitted in July 2020.

34. Another successful application, for the ARRROWS project to the Sustainable Innovation Fund, was not made until after the relevant date.

Assessment

35. It is apparent that Dr Crockford made a number of approaches to various companies regarding his new venture in the early months of 2020. There can, I think, be no real dispute that the name “Electric Aviation Limited” was used in connection with those approaches. It also appears that several bids for funding were submitted during 2020, again with the company being identified as “Electric Aviation Limited”. There is mention of local authority/council interest or involvement but the evidence is not specific about the nature of the relationship or the services provided. As far as I can tell, the only evidence of any delivery of goods/services was an installation at a Chelmsford hospital in September 2020 (i.e. after the relevant date). This appears to be an Apian Ltd contract in which the role of Electric Aviation Limited is not entirely clear. Most of the witnesses say that Electric Aviation Limited has been actively marketing their consultancy and software services in the UK. The evidence as a whole is, however, difficult to follow. Even if I take these witnesses’ (identical) statements at face value, it is not at all clear to me what software or consultancy services are offered by Electric Aviation Limited, or indeed whether by the relevant date it had offered any goods or services to customers. Its plans seem mainly to concern the development of a simulation of the urban environment in order to manage drone activity. Dr Crockford’s evidence is that government grants have been sought to get two products to “minimal viable product”. I note that there is mention of a “DroneDeck” product. However, there appear only to have been preparatory surveys before the relevant date, and there is no detail regarding the size or nature of any contract for purchase. The grant application for the FUSE project was not itself filed until 1 July 2020 and notification of its success was after the relevant date.

36. It may be possible for sufficient advertising to create goodwill prior to the commencement of actual trading. However, despite Dr Crockford’s statement that over £7,000 has been spent on advertising, there is virtually no evidence of any advertising directed towards potential customers. There is, for example, no evidence of the content of the website or of advertisements whether in print (such as in catalogues/brochures) or online. The only brochure in evidence is the FUSE prospectus, which is to support a bid for funding. Where there is reference to users of the services (as in Mr Moores’ statement) or of third parties having promoted Electric Aviation Limited services (e.g. in Mr King’s statement) there is no documentary support and no detail, such as the nature of the goods and/or services provided, value of any contracts or of any turnover generated by the company’s activities. Had Electric Aviation Limited been engaged to supply goods and/or services to customers, including business-to-business transactions, it would have been easy for it to provide invoices to show that. There is no such evidence. Most of the evidence concerns collaborations between Electric Aviation Limited and other companies. Whilst other companies who are potential partners of Electric Aviation Limited may be aware of it, the vast majority of the activities shown in the evidence are preparatory to the production of goods and services, rather than the provision of goods and services themselves. Many are concerned with obtaining funding. It is not clear to me that a company would be able to establish the requisite reputation in the absence of a product or service which is at least being actively marketed. Even if these interactions were capable of generating the relevant goodwill and reputation, my view is that they are too short on detail and too few in number to establish a commercially significant reputation.

37. In my view, the evidence provided does not establish that there was at the relevant date a goodwill or reputation which was more than trivial. That being the case, the application fails.

38. In case I am wrong, I will consider the defences advanced by the respondents and will assume for that purpose that one of the applicants has the reputation or goodwill necessary to support a claim.

Are the names sufficiently similar to mislead?

39. The contested names are “Electric Aviation Group Limited” and “Electric Aviation Limited”. “Limited” merely indicates the corporate status of the company and is not a significant similarity. The word “Group” is not a particularly significant difference in the context of a company name, since it is likely to be perceived as indicating a parent company with subsidiaries or that the company is otherwise part of a group of companies. “Electric Aviation” plainly describes the activities of both companies but it is identical in both names. Whilst the differences will not be entirely overlooked, the contested name is highly similar overall to the applicant’s name. The difference (i.e. the word “Group”) is insufficient to enable the user of the services to distinguish between the company names. Consequently, I find that the applicant’s case satisfies s. 69(1)(b) of the Act.

Defences

40. The respondents rely upon the defences identified at ss. 69(4)(b), (c), (d) and (e) of the Act. The primary defence is that the name was adopted in good faith. That is where I will begin.

Section 69(4)(d): that the name was adopted in good faith.

41. The relevant date for this defence is the date on which the name was adopted. It is for the respondents to show that the contested name was adopted in good faith. This is evident from the wording of s. 69(4) of the Act, which reverses the usual persuasive and evidential burdens in civil law cases, where good faith will normally be presumed and bad faith must be proven by the person alleging it. The reverse burden is justified by (a) the purpose of the legislation – which is to prevent the opportunistic registration of company names (also known as “company name squatting”), and (b) the practical difficulty that applicants would face if they had the burden of showing that a (usually unused) company name was adopted for opportunistic reasons. It should be easy for a respondent to explain its purpose in registering a name and to provide information in support, such as business plans. By contrast, it would usually be very difficult for an applicant to establish what a respondent’s motives were in registering the name. The legislature has addressed this difficulty by providing sufficient defences so that anyone acting in good faith can avoid the consequences of adopting a name which is the same as, or similar to, one in which someone else has associated goodwill.

42. The following principles in relation to good faith can be extracted from the judgments of the Privy Council in Barlow Clowes v Eurotrust International Ltd [2005] UKPC 37 and the Court of Appeal in England and Wales in Niru Battery Manufacturing v Milestone Trading Ltd [2003] EWCA Civ 1446:

• good faith is not displayed by a failure to act in a commercially acceptable way or by certain kinds of sharp practice which fall short of outright dishonesty or by dishonesty itself – see Niru Battery at [164]
  
• there is a combined subjective/objective approach to the honesty of a party’s behaviour. This involves (i) a consideration of what the party knew at the time of a transaction and (ii) how that party’s action would be viewed by applying normally acceptable standards of commercial behaviour - see Barlow Clowes [15]-[18], [28]-[32].

Evidence

43. The primary respondent was incorporated on 29 August 2017. Mr Iqbal’s evidence is that the primary respondent is developing a hydrogen hybrid-electric aircraft. Prints from electricaviationgroup.com show this aircraft. The prints are not themselves dated other than the printing date in 2021 but they indicate that the aircraft programme was first launched in 2020.

44. Mr Iqbal’s evidence is that the rebrand began in January 2020. He says that a search was undertaken in Companies House records for conflicting names at that time. A WhatsApp message dated 8 February 2020 from Mr Iqbal to Dr Norman Wood (the primary respondent’s Chief Technology Officer) discusses potential names. Mr Iqbal says in that message that “Khalid’s researcher came back suggesting ‘Electric Aviation Group’”. Mr Iqbal’s suggestion is “Electric Aerospace Group”. He explains why he and Khalid favour the names proposed by each of them and asks for Dr Wood’s views.

45. On 10 February 2020, Mr Iqbal emailed the design company Realise Design to say that the company name was changing from AMRD to EAG/Electric Aviation Group and asked that there be corresponding amendments to some images already provided.

46. Mr Iqbal sent a list of available domain names to an investor and a shareholder in the primary respondent on 18 February 2020 and asked them to advise which names he should purchase. The names included options for “Electric Aviation” and “Electric Aviation Group”, as well as “EA”, “EA-Group” and three options for the “Electric Aviation All Parties Parliamentary Group”. The proposed web addresses are for .com, .co.uk and .org.uk domain names. On the same date, Mr Iqbal also sent the same two individuals a document for comment. The document sets out the new organisational/membership structures and the primary respondent’s ambitions in respect of electric passenger aircraft. The company name “Electric Aviation Group”, abbreviated to “EAG”, is visible.

47. A number of the domain names mentioned at paragraph 46 above were purchased the following day, i.e. 19 February 2020. They include electricaviationgroup.com, electricaviationgroup.co.uk and electricaviationgroup.org.uk.

48. An application for an EU trade mark was filed on 6 March 2020. The trade mark is for a device with the letters EAG, though in the application the applicant has identified (albeit mistakenly) the “word element” as “Electric Aviation Group (EAG)”. The specification is for “airplane motors” (class 7), “apparatus for locomotion by air” (class 12) and “aircraft design” (class 42). A UK trade mark application was filed on 6 July, and subsequently registered, for a somewhat wider specification in the same classes.

49. Mr Iqbal says that the design of the primary respondent’s website began in March 2020. This is supported by emails in evidence. The name “Electric Aviation Group” is not mentioned but “EAG” is repeatedly. The new website is said to have been launched on 30 May 2020. Prints are provided which are not dated but the name “Electric Aviation Group” features. There is a banner which reads “Electric & Hybrid Aircraft for delivery starting 2028”.

50. The primary respondent’s new name was announced via LinkedIn around 15 May 2020.

51. Mr Iqbal says that “[the] delay in registering the change of name at Companies House was due to the Covid-19 pandemic and, because my Company wanted to be sure that our EU trade mark […] was registered, to ensure we were free to use the mark”.

Assessment

52. The respondents’ evidence shows that by 8 February 2020 two potential new names for the primary respondent had been identified and were being discussed. This suggests that the decision to rebrand the company had been made even earlier. Although there is evidence that Dr Crockford attended a conference in late 2019, there is nothing to suggest that the name Electric Aviation Limited was used at that point and, more particularly, no indication that the respondents would have become aware of the name as a result of any such use. Similarly, although there were various discussions between Dr Crockford and other parties about the future prospects for his company, these are private communications of which the respondents would not ordinarily have been aware and there is nothing to suggest that the name Electric Aviation Limited would have come to their attention at any time prior to Dr Crockford’s letter before action. The charge of a failure to act with due diligence by not searching the register has been answered by Mr Iqbal: his evidence is that searches were undertaken in January 2020 for identical and similar names. That accords with the chronology. Any search before 11 February 2020 would not have revealed Electric Aviation Limited as a registered company because it did not yet exist. Later searches may have revealed a conflict but by then the steps already taken to rebrand would have been additional factors in the decision to proceed, as would the proximity of their respective fields of business, discussed below. Nor do I think that the respondents can be criticised for failing to identify Electric Aviation Limited’s website. It is said to be “inconceivable” that the respondents would not have looked up .aero domain names. However, the .aero domain is patently less obvious and less widely known than the top-level domain names searched and I see no reason why, having established that various .com, .co.uk and .org domain names were available, the respondents would need or wish to look further. Even had the applicant’s website been found, there is no evidence before me to show its content or to indicate that it would have given the impression of a going concern whose rights should be further investigated.

53. Further, the steps taken by the primary respondent are, in my view, logical and entirely consistent with the actions of a company which wishes to rebrand. The fact that the respondent is concerned with producing electric aircraft makes its choice of “Electric Aviation Group Limited” entirely unsurprising, if unimaginative. It appears to me that the parties to these proceedings have landed on names which describe their respective businesses through coincidence rather than design. Mr Iqbal says in his witness statement that the activities of the applicant are “very commercially different to the activities of my Company”. That does not seem to me to be an unreasonable position. Although both parties are interested in air transport, one is concerned with building passenger aircraft and the other, as far as I can tell, with air traffic simulation for drones. The equipment and expertise necessary for such activities are likely to be very different. It also appears to me to be proper, in the absence of evidence to the contrary, to give due regard to Mr Iqbal’s experience in what is certainly a specialist field and to his informed assessment of the potential for conflict. In addition, it is the case as a matter of principle that the more descriptive a company name is of a business, the closer the activities can be before there is deception. Whilst I recognise that a company name registration does not limit the activities of a company and that, for example, there would be nothing to prevent the respondents from expanding into drone activity, the respondents’ assessment of the distance between the companies’ respective fields of activity at the time of the application is a relevant factor in determining whether the change of name was made in good faith.

54. Mr Iqbal explains the delay between the start of the rebrand and the name change as being in part due to the COVID-19 pandemic and in part because the respondents were awaiting the registration of the EU trade mark. There is no evidence to rebut those statements and his evidence has not been challenged in cross-examination. There is no detail of what the precise effects of the pandemic were on the respondents but neither reason strikes me as implausible on its face. Whilst the new name was registered after the respondents had been made aware of Electric Aviation Limited (on 8 July 2020), where preparations for the change of name had been under way for some time already and the respondents considered the activities of the companies sufficiently removed, I do not think that the sequence of events indicates bad faith. There is nothing to suggest that the respondents applied for the name in order to extract consideration from the applicant or for other opportunistic reasons.

55. Taking all of the above into account, I find that the name was adopted in good faith. The defence is made out.

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

Outcome

57. The application has failed.

58. As the application fails in any event, there is no need at this stage to make a direction that the Electric Aviation Limited be joined as a party to the proceedings. However, in the event of an appeal, I direct that Electric Aviation Limited be joined as a co-applicant/appellant.

Costs

59. As the respondents have been successful, they are entitled to a contribution towards their costs, based upon the scale of costs published in paragraph 10.1 of the Practice Direction. I award costs to the respondents on the following basis:

Preparing a statement and considering the applicant’s statement: £300
Preparing evidence and considering the applicant’s evidence: £800
Written submissions: £400
Fee for filing a counterstatement: £150
Fee for filing evidence: £150

Total: £1,800

60. I order Electric Aviation Limited to pay Electric Aviation Group Limited and Kamran Iqbal, jointly and severally, the sum of £1,800. This sum should be paid 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 applications; there is no right of appeal in relation to costs. The company names adjudicator must be advised if an appeal is lodged.

Dated 1 July 2022

Heather Harrison
Company Names Adjudicator