Decision

Decision on Highlife Music Publishing Ltd

Published 10 March 2020

Companies Act 2006

In the matter of application Nos. 1634 and 1676 by Adrian Fife for a change to the company names of Hilife Music Entertainment Ltd and Hilife Music Publishing Ltd, companies incorporated under numbers 10510541 and 10661329

Background and pleadings

1. The company names HILIFE MUSIC ENTERTAINMENT LTD and HILIFE MUSIC PUBLISHING LTD (“the primary respondents”) have been registered since incorporation on 5 December 2016 and 9 March 2017 under numbers 10510541 and 10661329, respectively.

2. By applications filed on 7 December 2017 and 30 January 2018, Adrian Fife applied under section 69(1) of the Companies Act 2006 (“the Act”) for the primary respondents’ names to be changed.

3. Mr Fife states that the names HILIFE MUSIC and HILIFE MUSIC GROUP are associated with him. Mr Fife claims that the names are recognised in the music industry for providing record production, sale of pre-recorded music, artist management and merchandise. He states that he has over 150,000 “potential clients” on his social media outlets. Mr Fife claims that HILIFE is not a common name and is an uncommon spelling, usually spelt highlife. He claims that this, together with the identical products and services, will cause the companies to be mistaken for each other.

4. The primary respondents filed notices of defence and counterstatements, disagreeing that ‘hilife’ is an uncommon spelling. They claim that the company names were adopted in good faith. As part of due diligence, the primary respondents (through their accountant) carried out a search at Companies House, revealing that Mr Fife’s company was dormant. Trademark clearance searches were also carried out which did not reveal any right in Mr Fife’s names. It was only after the negative search for the trademark clearance that the primary respondents were registered. They state that this is in keeping with acting in good faith and with reasonable care and honesty.

5. The primary respondents deny that they had any prior knowledge of Mr Fife’s companies before finding it registered as a dormant company in the Companies House search. The primary respondents have never been contacted by any person requesting the services of Hilife Music. They state that such contact would be expected if Mr Fife’s assertion that it had created a substantial client base were true.

6. The primary respondents rely upon two defences: section 69(4(b)(i), that the companies are operating; and section 69(4)(d), that the names were adopted in good faith. The primary respondents state that they have produced singles and LPs for artists such as Quayba, Atongo Zimba, Taiwo and Paapa Yankson “(a Highlife musical legend”). The primary respondents state that they have provided songs and branding for a documentary film to be released by Atlantic Pictures.

7. The primary respondents state that the name was adopted in good faith, for the reasons already stated, but also as far as the choice of names is concerned. The primary respondents state that the names were chosen because there is a connection between the name and a popular genre of music in Ghana, called HILIFE. Ms Augustina Atiemo, the primary respondents’ director, is from Ghana. It is claimed that the word HILIFE also reflects Ms Atiemo’s joy for living: HI meaning ‘hello’, and LIFE (hello to life).

8. The counterstatements list a number of domain names and social media names which are registered to the primary respondents. The names all incorporate “hilife music”. It is claimed that the primary respondents have invested approximately £58,000 into the companies.

9. Ms Atiemo was joined to the proceedings as a co-respondent at Mr Fife’s request, under the provisions of section 69(3) of the Act. It was Ms Atiemo who signed the statements of truth in the two notices of defence and counterstatements. For reasons which are unclear, the two sets of proceedings were not consolidated. Both sides filed evidence which is, to all intents and purposes, the same for both sets of proceedings. Consequently, we will produce a single decision covering both sets of proceedings.

10. 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 nor did they elect to file written submissions in lieu of attendance. Mr Fife represents himself. The primary respondents were initially represented by a solicitor in Ghana, but as no UK address for service was supplied, as required by rule 3(5)(a) of the Company Names Adjudicator Rules 2008 (“the Rules”), the primary respondents’ UK registered address was treated by the Tribunal as the address for service, under rule 13(2) of the Rules, meaning that the primary respondents were unrepresented after the point at which they filed their defences and counterstatements. We make this decision having carefully considered all the papers.

Mr Fife’s evidence

11. Mr Fife has provided witness statements for each of the proceedings, both dated 30 May 2019. He states that he founded the brand HILIFE MUSIC in 2007 as a recording studio. This developed into a record company, and several departments were created to look after various aspects of the business, resulting in the HILIFE MUSIC GROUP of companies. Services provided included music and audio production, mixing, mastering, remixing, artist shows and promotions, sound design, audio and sound effects for TV, radio and games.

12. Mr Fife states that HILIFE MUSIC was involved in the sound for Lucas Arts films and for Frontier and Atari games. Exhibit AF-001 is a print from a gaming website, gamefaqs.gamespot.com. Mr Fife is credited as “Additional Entertainer and Level Design and Ride SFX”, but there is no mention of HILIFE MUSIC. There is a link to amazon.com to purchase the game (Thrillville), but the prices are in US dollars. This does not assist in showing goodwill or a reputation in the name in the UK, which is the relevant territory. It also dates from 2007, some ten years prior to the relevant dates, which are the dates on which the contested company names were registered.

13. Exhibit AF-002 is a print of a letter dated 15 May 2019 from an individual at the Peterborough YMCA. It is headed “To Whom it May Concern” and says “We write this letter as confirmation that HILIFE MUSIC GROUP has previously worked with the YMCA during 2015/2016 and are currently working with us.” This is hearsay evidence, sought for these proceedings. It carries less weight than, for example, a letter written during past years, because it has been created solely because there is a dispute. Further, it has not been produced as a witness statement which means the truth of it cannot be tested. Exhibit AF-004 also contains a similar hearsay letter, dated 17 May 2019, from ‘Maxim’ of the band The Prodigy.

14. Exhibit AF-003 is described as showing that HILIFE MUSIC has sponsored fashion shows and music awards; for example, presenting an award for best male vocalist at the Leicester Music & Entertainment Awards 2018. This is after the relevant date. Mr Fife states that HILIFE MUSIC has worked with a number of musicians, writers, producers and artists, but does not give further details or dates except in relation to a reggae artist called Starkey Banton. Exhibit AF-004 contains prints from Amazon, Apple Music and Spotify, the latter two showing the availability of a Starkey Banton track, which has a copyright date of 2013 owned by HiLife Music Group. This exhibit also contains a copy of a letter from the Peterborough branch of the YMCA, but this one is dated 9 January 2015. It is addressed to “HILIFE MUSIC GROUP” by an individual from the YMCA and concerns a musician who was in partnership with HILIFE MUSIC GROUP who had become an ambassador for the YMCA.

15. Mr Fife states that HILIFE MUSIC BRAND has achieved well above 270,000 followers and subscribers through social media, website and online outlets “which provides the applicant with a large customer base”. The screenshots filed to support this statement, which comprise Exhibits AF-005 and AF-007, are dated in 2018, which is after the relevant dates. Exhibit AF-008 comprises screenshots from individual’s Twitter accounts showing that they ‘follow’ HILIFE MUSIC’s Twitter account. The majority of these do not show which year they are from or are dated within 2018.

16. Exhibit AF-006 has been filed to support Mr Fife’s statement that HILIFE MUSIC received hundreds of music demos from artists, producers, songwriters and the like. The exhibit comprises a substantial number of email prints from individuals to info@hilifemusicgroup.com. The emails attach audio files or refer to music accessible via a ‘cloud’ or social media platforms, with requests for HILIFE MUSIC to listen to and promote the music. They are all dated in 2015 and 2016, with the majority being from 2015.

17. Mr Fife states at paragraph 19 of his witness statement:

Given the tremendous strides that were made with the name HILIFE MUSIC from the year 2007 onward, by the year 2014 I incorporated the company with the name HILIFE MUSIC so that it could become a corporate vehicle by which the name of the brand which I had developed would continue. I assigned all of the goodwill I had generated prior to that date to HILIFE MUSIC such that it belongs to HILIFE MUSIC. I also confirm that any goodwill I have previously generated in my personal capacity and going forward belongs to HILIFE MUSIC.

18. Mr Fife refers to the respondents’ claim that his company was dormant when the respondents’ names were chosen and the companies incorporated. He states that, between 2014 and 2016, there was a great amount of activity, building and strengthening of his brand name. Mr Fife states, at paragraph 25:

The “dormancy” that the respondent relies on to justify registering the same name in December 2016, was for all intents and purposes a paperwork/procedural dormancy which arose due to non-compliance in terms of submitting late accounts. Hence, the non-compliance which triggered dormancy on the record did not prohibit HILIFE MUSIC from using the goodwill already established to remain relevant.

19. Mr Fife considers it to be inconceivable that the respondents can deny evidence of his company’s online presence, since he states that a simple Google search reveals the first and second pages of listings to be his company. Exhibit AF-010 is said to support this statement, comprising two screenshots of a Google search results. We note that the search is undated, as are the pages.

20. Exhibit AF-011 comprises prints from the respondent’s website, Instagram, Soundcloud, LinkedIn and Twitter accounts which Mr Fife states shows that the respondents have a very small number of followers. He considers that this explains why the respondents have never been contacted by anyone expecting the respondents to be his company. The respondents’ Instagram page which is included in the exhibit shows that at the unknown date when Mr Fife printed the screenshot that the respondents had 89 followers. There is also a picture referring to the film “40 and Single”, with a date of 2018:

The respondents’ evidence

21.Ms Atiemo’s witness statement is dated 25 March 2019. She states that when she was choosing the name for her companies, she had no prior knowledge of Mr Fife or his company. Ms Atiemo states:

[1.] I named my company “HILIFE” because there is a personal connection between the word and my country of origin Ghana (West Africa), which is also the home to HILIFE MUSIC, also spelt as HIGHLIFE MUSIC, which is a very popular genre of music and a heritage, and so HILIFE MUSIC ENTERTAINMENT [and HIGHLIFE MUSIC PUBLISHING] is my acclamation as a tribute.

[2.] The word HILIFE is also my mantra, which is how I embrace my appreciation, and gratitude for life and living. “HI” meaning “hello” and “LIFE”, which for me meant “hello to life”. These are what inspired me to create HILIFE MUSIC ENTERTAINMENT [and HILIFE MUSIC PUBLISHING].

22. Ms Atiemo states that she took early steps to build the brand names by registering the corresponding domain name, www.hilifemusic.com and all the popular social media platforms with the same brand name. She states that all these steps were taken before she had any knowledge of Mr Fife’s company. She states that she has invested around £58,000 into her companies. Exhibit AA/1 comprises a list of the domain name and social media platforms to which she refers:

23. Ms Atiemo states that she has been operating under the company names since December 2016. She states that she has executively co-produced and co-written LPs and singles for artists called Quauba, Atongo Zimba, Taiwo Sotonwa and Paapa Yankson. Ms Atiemo also states that the respondents have produced a behind-the-scenes documentary film with interviews with these artists.

24. Ms Atiemo states that the respondents are also official sponsors of a new television series (which she also refers to as a film) called “40 and Single”. The respondents have provided songs, including the main theme song for the running credits placed at the end of each episode. She states that “40 and Single” is available online across streaming media platforms. Ms Atiemo exhibits at Exhibit AA/2 a letter from Leila Djansi, the director of “40 and Single”. The letter is dated 26 February 2018 and is addressed “to Whom it May Concern”. As a result, this is hearsay, as described earlier in this decision. The letter confirms that ‘Hilife Music’ is an official sponsor of “40 and single”, starring actors from the US and Ghana. The letter says that Hilife Music has provided songs for the production.

25. Ms Atiemo states that she ensured that she carried out due diligence prior to registering her company names. As part of due diligence, she states that she carried out a search at Companies House and also requested her accountant, Harry Koranteng, to carry out a search, just to be sure. Ms Atiemo states that Mr Fife’s company had not filed accounts since its incorporation in 2014 to December 2016, when the due diligence searches were done. She explains that the Companies House checks also revealed that there were other companies with “HILIFE” as part of their names. Exhibit AA/3 comprises a print of Mr Fife’s company registration details from the register of companies. This appears to be the print from the search at the time it was done because there is a date of 2 December 2016, timed at 15.23 and the text “found in iCloud Sent Mailbox”:

26. Mr Koranteng has provided a witness statement, dated 26 March 2019. He is an Accountant and Partner at Peter Osalor and Co. Accountants. Mr Korangten recalls that Ms Atiemo asked him to carry out a search at Companies House in order to register two companies, the first being Hilife Music Entertainment in December 2016, followed by Hilife Music Publishing in March 2017. Mr Korangten states that the purpose of the search was to see if there were any other companies registered with the name “HILIFE MUSIC ENTERTAINMENT” and “HILIFE MUSIC PUBLISHING”. He states:

[2.] The search at the Companies House revealed there were a number of companies registered with “HILIFE” in their name. Some of the companies used a hyphen, for example HI-LIFE”.

[3.] I recall that there were no companies registered with the name “HILIFE MUSIC ENTERTAINMENT” or “HILIFE MUSIC PUBLISHING”. I recall coming across “HILIFE MUSIC”, but this company showed that it had remained dormant since its incorporation in 2014 until 2016 when the searches were done, and no taxes had been filed. I then confirmed with Miss Atiemo that she could register the two limited companies.

27. Ms Atiemo states that she did not have any knowledge of Mr Fife’s company prior to the Companies House searches. She states that the first contact she had with Mr Fife was on 13 July 2017 about the current dispute. Ms Atiemo states that she has never been contacted by any person requesting the services of Mr Fife’s company and that she would have expected such calls given Mr Fife’s assertion that his company has a substantial client base and goodwill.

Mr Fife’s evidence-in-reply

28. Mr Fife refers to HILIFE MUSIC presenting the award for best male vocalist at the Leicester Music & Entertainment Awards 2018 and sponsoring the Awards in 2019/20, as mentioned in his first witness statement. Mr Fife exhibits, at Exhibit AF-003-1, a copy of a confirmation email dated 31 May 2019. This from an individual who identifies himself as the founder of the Awards and is addressed “to Whom it May Concern”. He confirms that HILIFE MUSIC presented the award and was a sponsor, as described by Mr Fife. Again, this is hearsay evidence.

29. Mr Fife states that his company has worked with a number of artists (as explained in his first witness statement), including “Monsta Boy” with whom he/his company has had a working relationship since 2010. A letter dated 28 June 2019 (Exhibit AF-004-01) addressed “To Whom it May Concern” from an individual “pka Monsta Boy” confirms the same. This is hearsay evidence, for the reasons already explained.

30. Mr Fife exhibits a flyer from August 2016 (Exhibit AF-004-2) which appears to indicate collaboration and/or sponsorship with Mr Fife’s company:

31. We note that Mr Fife’s second witness statement and exhibits are not evidence-in-reply. It does not reply to any of Ms Atiemo’s evidence. Although allowing Mr Fife to file evidence about his business which he should have filed the first time around could introduce an unfairness, his second set of evidence makes no difference to the outcome of the decision.

Decision

32. 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

33. The relevant dates for the purpose of proving goodwill/reputation are the dates of the registration of the contested company names which, in this case, are the dates of incorporation, 5 December 2016 and 9 March 2017. As noted earlier in this decision, some of the applicant’s evidence post-dates these two dates. In particular, the social media prints showing the number of followers are either undated or are dated within 2018. Modern use of social media means that individuals and companies can attract a great number of followers relatively quickly, as appears to be the case for Mr Fife’s company: in his applications, Mr Fife gives the figure of 150,000 followers, but by the time he wrote his witness statements, he put the figure at 270,000. This evidence does not assist in showing whether Mr Fife, as the applicant, had the requisite goodwill/reputation at the relevant dates. Nor do the undated Google prints filed to show that his company appears on the first and second pages of search listings for HILIFE MUSIC. This does not show that this was the case at the relevant dates.

34. There are two high points in Mr Fife’s evidence. One is the hearsay letter dated from 2015 which carries some evidential weight as it has not been sought for these proceedings but was written prior to there being a dispute. The second high point is the significant amount of emails from various aspiring artists, sent to Mr Fife’s company in order that they might be published and/or promoted by HILIFE MUSIC. The emails were all sent in 2015 and 2016. The recording by Starkey Banton available on Apple Music and Spotify has a copyright date of 2013, attributed to HILIFE MUSIC.

35. 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.

Although Mr Fife’s evidence is thin as regards the position at 5 December 2016 and 9 March 2017, the evidence described in the previous paragraph suffices to show that HILIFE MUSIC was bringing in custom as music promoter/publisher at the relevant dates. We find, therefore, that there was a sufficient level of goodwill and/or reputation at the relevant dates.

36. However, we note what Mr Fife says about assigning all of the goodwill he had generated (apparently, as a sole trader) to his company. Mr Fife, not his company, is the applicant. His company is a separate legal entity capable of holding goodwill. That said, the Act refers to reputation as well as goodwill. Mr Fife and his company could have a reputation together in HILIFE MUSIC as he commenced using the brand name prior to incorporating his company We will proceed on that basis. In the event, whether Mr Fife has sufficient standing in relation to goodwill or reputation to bring these actions does not affect the outcome of this decision, for reasons which will become clear.

Are the names “sufficiently similar”?

37. The respective company names must also be “sufficiently similar” that use of the primary respondents’ names in the UK would be likely to mislead by suggesting a connection between the parties. The name relied upon is HILIFE MUSIC. The contested names are HILIFE MUSIC ENTERTAINMENT LTD and HILIFE MUSIC PUBLISHING LTD. “LTD” is an abbreviation for Limited and denotes the type of company. The parties’ names all begin with HILIFE MUSIC. The material differences between the names are descriptive words which inform the public as to the nature of the parties’ businesses: ENTERTAINMENT and PUBLISHING. Consequently, owing to the differences, the names are not the same (section 69(1)(a)). However, because the only differences between the names are words which describe the businesses, it is the words HILIFE MUSIC, or simply HILIFE, since MUSIC also describes the services, which form the distinctive or memorable part of the parties’ names. Consequently, the names are sufficiently similar that the use of the primary respondents’ names in the UK would be likely to mislead by suggesting a connection between the parties, under section 69(1)(b) of the Act.

Defences

38. As the ground specified in subsection 69(1)(b) is established, the onus switches to the primary respondents to establish whether they can rely on any of the defences pleaded. We will begin with the defence that the company names were adopted in good faith.

Section 69(4)(d): that the company names were adopted in good faith

39. It is evident from the wording of s.69(4) of the Act that the onus is on the respondents to show that the contested names were adopted in good faith. The relevant dates for this defence are the dates on which the company names were registered: 5 December 2016 and 9 March 2017.

40. 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,^{[footnote 1]} and the Court of Appeal in England and Wales in Niru Battery Manufacturing v Milestone Trading Ltd^{[footnote 2]} :

(i) Good faith is a broad concept includes a failure to act in a commercially acceptable way. It includes sharp practice which falls short of outright dishonesty, and also dishonesty itself - see Niru Battery at para 164.

(ii) 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 paras 15–18, 28–32.

41. Our task is (a) to determine what the respondents knew at the time the contested names were adopted, and (b) whether the adoption of the names would be viewed as commercially acceptable behaviour when judged objectively. This means how reasonable men and women in the field would view the respondents’ behaviour (i.e. not simply how the respondents viewed their own actions).

42. Ms Atiemo has given evidence about why she chose to adopt company names beginning with HILIFE MUSIC. She has also, as has her accountant, given evidence about the searches undertaken prior to registering the company names. Ms Atiemo has explained that the inspiration for the names was partly as a reference to a genre of music in Ghana (Highlife/Hilife music). Ms Atiemo is from Ghana and she has produced music for individuals with clearly African names. The film/TV series “40 and Single” features actors from Ghana. Ms Atiemo states that she also favoured a combination of HI and LIFE because this reflects her personal outlook: ‘hello to life’.

43. Mr Fife claims that HILIFE is an uncommon name and an uncommon spelling, usually spelt ‘highlife’. In our view, HI is a common swap for HIGH (as is, for example, LO for LOW). It would not be difficult to arrive at the spelling HILIFE as a variant on the conventional spelling; it is common for businesses to use trading names that are misspelt in order to make them more memorable or distinctive. There is nothing particularly unusual or uncommon about HILIFE as a variant of HIGHLIFE, and consequently it is the sort of word that two or more entities might use through coincidence. Mr Koranteng states that he found several companies registered with HILIFE or HI-LIFE in their names, which lends support to our view.

44. Ms Atiemo’s explanations for her choice of names appear reasonable to us. Her reasons have not been challenged by Mr Fife. We will now look at what the respondents knew at the relevant dates of 5 December 2016 and 9 March 2017.

45. Ms Atiemo has stated that she did not know about Mr Fife or his company when she was choosing her company names. This does not mean that at the relevant dates that she did not know of Mr Fife’s company. In fact, both Ms Atiemo and her accountant, Mr Koranteng have been candid in explaining that they found Mr Fife’s company on the register of companies, when Mr Koranteng performed a search for Ms Atiemo’s chosen names on 2 December 2016.

46. They both explain that what they discovered was that Mr Fife’s company had been dormant since it was registered in 2014 (although, strictly, the search evidence shown by Ms Atiemo reveals that the company was ‘active’ but was filing dormant accounts). Given this discovery, it is not altogether surprising that they did not search the internet, since their assumption was that the company was not trading and never had done. We do not accept that the failure to conduct an internet search is a decisive factor. The importance that can be attached to such an omission will vary (in the range of ‘none’ to ‘some’) depending on all the other facts and circumstances surrounding the adoption of a contested company name. Some weight may be given to a failure to make appropriate inquiries where the respondent’s state of knowledge was such that some investigation of third-party rights was called for. In this case, a search of the companies’ register was undertaken and the dormant status of Mr Fife’s company was found. Ms Atiemo states in the counterstatements that trade mark clearance searches were also undertaken.

47. Mr Koranteng notes that his search revealed that “no taxes” had been filed by Mr Fife’s company and that, given this fact and the dormancy since incorporation of Mr Fife’s company, he gave Ms Atiemo the go-ahead to incorporate the primary respondents. The searches for registered company names and for trade marks seem reasonable to us and, together with Ms Atiemo’s inspiration for the names, represents part of the overall picture of facts and circumstances surrounding the adoption of the contested company names which reduces any potential importance of the failure to conduct internet searches. Mr Fife has given an explanation as to why his company had always been dormant between the date of its incorporation and the date when Mr Koranteng performed the search of the companies’ register. Mr Fife states that the dormancy “arose due to non-compliance in terms of submitting late accounts”. That is not something that third-parties would know: no trading accounts had ever been submitted.

48. Viewing all the facts and circumstances in the round, including the coincidental substitution of HI for HIGH, we find that the primary respondents have met the burden placed upon them to show that the names were adopted in good faith; both in terms of the genesis of the names, and in terms of due diligence prior to registering the contested names. This was commercially acceptable behaviour when judged objectively. The defence of the names having been adopted in good faith succeeds.

49. The good faith defence succeeds which means that the applications have failed. It is not necessary, therefore, to look at the other defence relied upon, under section 69(4)(b)(i): that the companies are operating under the names. However, for completeness, we will look briefly at this defence.

50. The relevant dates for this defence are the dates on which Mr Fife’s applications were made: 7 December 2017 and 30 January 2018. This is, more or less, a year after the companies were incorporated with the contested names. Ms Atiemo states that she has invested approximately £58,000 into the companies, but gives no details as to what was done and when. Ms Atiemo states that she has been operating under the company names since December 2016. This can only apply to one of the companies, the one incorporated on 5 December 2016, because the other was not incorporated until 9 March 2017. She refers to services supplied to various artists, but there are no supporting exhibits or dates. The film/TV series “40 and Single” appears to have been released in 2018. It is probable, therefore, that Ms Atiemo, via her companies, provided songs for the production prior to 2018. However, the letter from the director of “40 and Single” has been solicited for the proceedings. It is not in witness statement form, so it is hearsay and cannot be tested in cross-examination. The weight of hearsay evidence has to be assessed according to the various factors set out in section 4 of the Civil Evidence Act 1995:

4.- Considerations relevant to weighing of hearsay evidence.

(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard may be had, in particular, to the following-

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

51. The filing of a hearsay statement inherently comes with the risk that the tribunal may assess its weight at a lower level than that which the party considers it should carry (depending on the factors set out in section 4 of the Civil Evidence Act 1995). We find that the letter from the director is of little weight as it is not contemporaneous or corroborated by other documentation.

52. On balance, we find that the evidence is too flimsy to find that the primary respondents were operating on the dates on which the applications were filed by Mr Fife. This defence fails.

Outcome

53. The applications to change the company names have failed because the respondents have a defence that the names were adopted in good faith. It is worth noting that the purpose of s.69 of the Act is to prevent the opportunistic registration of company names (‘company name squatting’). Section 69 of the Act is not intended to provide exclusive rights to a company or trading name (as with trade marks).

Costs

54. 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 respondents who have been successful in these proceedings and who are entitled to a contribution towards their costs. The primary respondents were only professionally represented at the outset of the proceedings. We will therefore reduce the award by 50% in relation to the work done whilst the primary respondents were unrepresented (statutory fees are awarded in full). Taking into account that the documents produced in both sets of proceedings were largely identical, we award costs jointly to the primary respondents, as follows:

Considering the CNA1 and preparing a CNA2 x 2: £500

Fee for filing the CNA2 x 2: £300

Considering the applicant’s evidence and preparing evidence: £250

Fee for filing evidence x 2: £300

Total: £1350

55. Adrian Fife is ordered to pay Hilife Music Entertainment Ltd and Hilife Music Publishing Ltd, jointly, the sum of £1350. 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).

56. 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 5th March 2020

Judi Pike
Company Names Adjudicator

Teresa Perks
Company Names Adjudicator

Mark Bryant
Company Names Adjudicator

1. [2005] UKPC 37 ↩

2. [2003] EWCA Civ 1446 ↩