Decision on Kingkabs Limited

Question 1

The defence

Accepted Answer

10. On 6 April 2021, the primary respondent filed a notice of defence (completed by Mr Hutchison). As these comments were made in response to the witness statement of Mr Thomas filed with the application, we shall return to them below. In its Notice of Defence, the primary respondent indicates that it is relying upon defences based upon sections 69(4)(c) and (e) of the Act. It further indicates that it is claiming its costs.

Question 2

Representation

Accepted Answer

11. In these proceedings, the applicants are represented by SAS Daniels LLP solicitors (“SAS”); the respondents represents themselves. The applicants’ evidence is in the form of two witness statements from Mr Thomas. 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 completed by Mr Hutchison who is now the sole director of the primary respondent, we intend to treat his pleadings and the attachment to that Form as evidence.

12. The parties were asked if they wanted a decision to be made following a hearing or from the papers. Although neither party requested a hearing, the applicants elected to file written submissions in lieu of attendance.

Question 3

Evidence

Accepted Answer

13. As we mentioned above, this consists of two witness statements both from Nigel Thomas. The main points emerging from his first statement, dated 27 October 2020, are, in our view, as follows:

Mr Thomas and his wife operate as a taxi operator in the Chester, Ellesmere Port and Cheshire area and also in Flintshire in the North West/North Wales;
Mr David Barry Thomas (Mr Thomas’ father) ran a taxi operator business in the North West since the mid-1960s under the name “KingKabs”;
David Barry Thomas “took control of the business” in 1980 and traded as a partnership until 1999;
Vedamain Limited (company no. 03623784) was incorporated in 1999 (it was actually incorporated on 28 August 1998) with David Barry Thomas and his wife Helen Thomas as shareholders owning 100% of the shares;
in 2001, David Barry Thomas died;
Mr Thomas states “…We have continued trading as “KingKabs” under the name Vedamain Limited” with him and his wife, Caroline Jane Thomas, owning 100% of the shares;
in 2019, Vedamain Limited bought the assets of Abbey Taxis (a Chester taxi firm), creating the largest taxi firm in Chester and Ellesmere Port;
the application to the Tribunal has arisen because of a dispute between himself and a Mr Nigel Fairclough;
Mr Fairclough trades as Star Cars and Riverside Cars. He provides hire cars for the taxi industry and, up until the dispute, was the largest supplier of cars for prospective taxi drivers to KingKabs;
Mr Thomas explains that due to prohibitive insurance rates, taxi drivers approaching KingKabs for work are usually advised not to buy their own vehicles but rather to hire or rent a car from preferred suppliers;
this was formerly Mr Fairclough who, until recently (pre-covid), had 100 vehicles of the 250 supplied vehicles, with 150 supplied by other KingKabs approved suppliers;
drivers hire their own cars and use KingKabs’ infrastructure to operate within the taxi firm;
drivers pay “settle” to KingKabs of, for example, £115 or £120 per week and that is how KingKabs obtains its income. Since covid, “settle” has been paid on bands of income;
pre-covid the business was worth in excess of £10m – transporting in excess of 5 million passengers per year and enjoying over 500 accounts with local businesses, authorities, hotels, supermarkets, restaurants, shops etc.;
Mr Thomas explains he telephoned Mr Fairclough (he does not say when) to discuss the allegedly unprofessional conduct of a former employee “MD” who had recently become involved with a company called Globetrotterz who had been trading for a number of years as an airport transfer company. The upshot of that conversation was, states Mr Thomas, “that he [Mr Fairclough] would never hire a car to [MD]”;
four days after that conversation, Mr Thomas explains he found out that MD was driving a car provided to him by Mr Fairclough at Riverside Cars. This, he states, led to an immediate breakdown of trust and, as a consequence, KingKabs removed Riverside Cars from their list of preferred suppliers which, he states, resulted “in a very small number of returning drivers needing to swap suppliers where necessary from hiring vehicles from Riverside Cars to an alternative preferred supplier until the matter could be resolved if possible.” The remaining Riverside Cars vehicles already hired to drivers remained in place;
he states that Mr Hutchison of Riverside Cars contacted the applicants to resolve the matter (he does not say when). He states Mr Hutchison was advised that Mr Fairclough would need to contact Mr Thomas directly to discuss the matter. Mr Thomas states that before he had the opportunity to return a missed call from Mr Fairclough, “[he] received an allegedly threatening text”. That text message (sent to “Nigel T”) and dated 1 July 2020 is attached to the Form CNA2 and reads:

Hi Nige, I’m aware of your plans with the other guys, just a thought at the end of last year my accountant from the Wirral introduced me to…I think I may have to suggest a Chester Office hopefully he will help me out as we’re there only CWCC supplier and we will have the spare cars.

We note the text message concludes with a “thumbs up” emoji.

of that text, Mr Thomas states: “The text was to the effect that he would arrange for our largest direct competitor from the Wirral to move into Chester and take his vehicles off our fleet and onto theirs thus damaging my business.” As a result of that text, a decision was made by Mr Thomas to no longer allow any Riverside Cars vehicles hired from Mr Fairclough to remain on his fleet and drivers were asked to find an alternative approved supplier as soon as possible;
he states that in retaliation, Mr Fairclough emailed him and the council to inform them that he was cancelling his fleet insurance which, he states, resulted in chaos. We note that on 7 July 2020, an email sent from Mr Hutchison’s email address (but which bore Mr Fairclough’s name) was sent to, inter alia, info@kingkabs.co.uk in which Mr Fairclough states:

Can I please bring to your attention that as of 5pm 7 July 2020 our insurance will cease on all vehicles.

Please be aware that a copy of this will be forwarded to the council. This is due to the fact we understand that as of Friday 10th 5pm You have informed all our drivers/vehicles must be off the road by then. Unfortunately due to an insurance payment going out will we not have the funds to pay it…;

Mr Thomas further states, that out of 50 KingKabs/Abbey Taxis drivers hiring vehicles from Riverside Cars, 45 remain working with KingKabs/Abbey Taxis and 4/5 went to other taxi firms;
he states that this dispute led to a range of damaging social media posts, details of which are provided at pages A5 to A84 of the exhibit to his statement. While we do not intend to summarise these here, for the avoidance of doubt, we can confirm we have read them all;
on 10 July 2020, SAS wrote to Mr Fairclough alleging, inter alia, “passing off and section 69 Companies Act 2006.” We note that the letter refers to company no. 12721143 “KLNGKABS LIMITED” which was incorporated on 5 July 2020 and dissolved on 22 June 2021 and of which Mr Fairclough was the sole director (he resigned on 3 August 2020);
Mr Thomas states that Mr Fairclough has also attempted to use the name “Abbey Taxis”, the “goodwill, business and name…” which, he states, the applicants purchased in 2019;
page A117 of exhibit NT1 consists of what Mr Thomas describes as “an apology of sorts” posted by Mr Fairclough in response to the letter of claim. It reads:

An apology I wish to make it clear that in previous post I’ve used the word bullies cab or Kk please be advised that this is in no way reference to KlngKabs who for over 50yrs has been servicing the people of Chester NT is in no reference to the owner of KingKabs i have removed all posts within this reference as it could be mistakenly took that the reference was the above.

in relation to KINGKABS LTD (company no. 04528140), Mr Thomas states that this company had traded in the Llandudno area of North Wales as a taxi operator in the 1980s and early 1990s but had ceased trading at some point in the 1990s, adding that it appears that Mr Fairclough became aware of the position in relation to this company in about July/August 2020;
on 19 August 2020, SAS wrote to Manleys Solicitors, who act for Mr Fairclough. That letter (provided as pages A119 to A125 of the exhibit) includes, inter alia, that if no action is taken by 21 July 2020 (which must be a typographical error) in respect of the name of the company (the subject of the current application) an application would be made to this Tribunal;
Mr Thomas notes that Mr Fairclough resigned from the primary respondent on 27 August 2020, adding that Mr Hutchison was appointed as a director on 26 August 2020. Mr Thomas states he understands Mr Hutchison:
“is Nigel Fairclough’s employee in Riverside Cars. Clearly Mr Hutchison has no interest in using the name “KingKabs” and the change in Director is a cynical attempt to avoid any propose action against Nigel Fairclough. Antony Hutchison is merely Nigel Fairclough’s nominee…”;
page A125 consists of an undated post from Mr Fairclough which Mr Thomas states “made an allusion…to opening up a taxi firm in the Llandudno area.” We note the undated post refers to “…and if anyone is interested in moving to Llandudno we have an office opening there soon”;
Mr Thomas states that he is aware that Mr Fairclough has sought taxi operator licences in Flintshire (not Llandudno in Conwy) and in Saltney in Flintshire, adding that “Saltney is also effectively in Chester as part of the town, unusually, is both in Flintshire and Cheshire…”;
page A126 of the exhibit to Mr Thomas’ statement consists of a letter dated 15 October 2020 from SAS to Mr Hutchison indicating that he has until 4pm on 23 October 2020 to change the name and, if not, the applicants “will seek the costs of making [this application to the Tribunal] from you”

Question 4

The respondent’s evidence contained in its Notice of Defence

Accepted Answer

14. As these are the only comments we have from the respondents, they are reproduced verbatim below:

I Mr A Hutchison took over the business along with the name Kingkabs after Mr Fairclough retired

Mr Fairclough had sort to buy KingkKabs (Llandudno) but was advised against it by his accountant due to any outstanding financial concerns that may be involved with the company and suggested to wait till it was struck off, Mr Fairclough applied for the name but was refused due to the word king and was suggested he must apply to the Welsh government to grant permission than was told he must apply the English government for permission after some time of not hearing anything he decided replace it with King, Sometime after permission was granted from both governments for the use of the Kingkab name.

Mr Thomas stats the reason for the breakdown was due to Mr Fairclough helping a [MD] Mr Thomas was advised by myself that it was me that delt with [MD] unaware of the bad relationship between the three parties however it did come as a surprise To Mr Fairclough that [MD] was branded a thief as he is a badge driver/operator with Cheshire West & Chester City Council I explained to Mr Thomas and his staff that It was my error and I would rectify my mistake and was asked by his staff to provide proof by sending pictures of the cars returned via email (he also insisted i take other cars off all the other drivers at GLOBTROTTERZ) and send him proof (putting drivers out of work in the middle of a covid pandemic) that had no reason to but harm the business of a very small rival, i did what Mr Thomas wished but Mr Thomas then wouldn’t take mine nor Mr Fairclough phone calls (l even went in person to there office and was told Mr Thomas will not talk to me) I needed to know why he still insisted that drivers must not use my services after I did everything that I was asked, His actions was stopping his own work force from returning from the first covid 19 lockdown. I would suggest that perhaps Mr Thomas discovered that we may be opening up another garage 60 miles away?

Mr Thomas states that Mr Fairclough was also using the name Abbey taxis and chauffer hire to start a taxi firm yet the advert is for MOT station that was at another address from the early 2000s (photo conveniently cropped not to show address and age of advert) That was placed by [JF] director/owner at that time. Mr Fairclough and [JF] was business partners in an mot station till [JF] retired in 2015 when Mr Fairclough moved premises and started a new business (RCS). Mr Thomas should know that no council would not permit the same name to be used in the taxi industry. The coverage of a taxi office is around 5 miles radius Mr Thomas has offices in Chester Ellesmere port and 2 miles from Chester in Saltney Flintshire, These Councils have a radius of over 60 miles hence the Business that already had the name KingKab did not effect Mr Thomas in all the years it was running until he discovered that I was looking in to opening up a garage in this name.

Please find copy of txt Mr Fairclough sent to Mr Thomas that he calls threatening its also time and dated [see above] and was sent due to Mr Thomas due to his reluctance to take any calls from us Unfortunately due to a number of court actions being took against Mr Thomas by ex employees and former taxi firm owners it is hard to to gather evidence or statements from people due to the possibility of damaging any proceedings, Mr Fairclough has been asked to be a witness in a case concerning a driver taking action against Mr Thomas. As for the Facebook posts Mr Thomas caused hardship to a number of drivers by insisting they do not use my services (l am not sure if Mr Thomas has the authority to do this to self employed drivers unless they are actually are employed by Mr Thomas?) But due to the number of people this had implications to many people took to FB to ask about the situation as you can see it got a bit heated due to the seriousness of the situation and effect it would have on so many livelihoods. Due to the fact we are now pretty much unable to work in the area due to Mr Thomas buying every taxi firm in our area I must look at relocating to area he does not control and was looking to use Kingkabs to start again in an other area where I can Hire service maintain cars I must stress I will not be operating a taxi firm as Mechanics is what I know and always worked on the repair of taxis.

Question 5

The applicants’ reply to the Notice of defence

Accepted Answer

15. Mr Thomas’ second witness statement is dated 11 June 2021 and responds to the comments contained in the Notice of Defence. He states:

3. I do not accept Mr Hutchison’s evidence that it was an intention to commence a taxi business 60 miles away in Llandudno, North Wales. Mr Hutchison’s garage and all his trading activity is in the Saltney and Chester area. He has no associations or connections with Llandudno otherwise he would have said what those connections were.

4…The logic of Mr Hutchison’s evidence is that he wishes to use the name “KingKabs” for his garage repair workshop as a trading name in Saltney, Chester where he has traded for over 25 years. The suggestion that he would move this business after all those years is simply not credible….

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

17. On 27 January 2022, the Tribunal wrote to SAS. It stated:

The above proceedings are currently with the Adjudicators who are preparing a decision from the papers on file.

Having noted that the applicants are identified in the Form CNA1 as “Mr Nigel Thomas and Mrs Caroline Thomas T/A KingKabs”, the Adjudicators have further noted that in his first witness statement, Mr Thomas explains that:

5…Thereafter Vedamain Limited was incepted in 1999 (with my father, David Barry Thomas and mother Helen Thomas as shareholders, owning 100% of the shares). In 2001 my Father died and we have continued trading as “KingKabs” under the name Vedamain Limited, (the current position is myself, Nigel Hugh David Thomas, and my wife, Caroline Jane Thomas,) having the 100% shareholding….

Thus, it appears that there may be some tension between the names of the applicants identified in the Form CNA1 and Mr Thomas’ comment mentioned above.

As a consequence, the applicants are now allowed 14 days from the date of the letter i.e. on or before 10 February 2022 to consider the position and to make any request to the Tribunal they consider appropriate.

Any response filed by the applicants should be copied to the primary respondent and Mr Hutchison who will then have 14 days from receipt of same to file any comments they consider appropriate.

At the conclusion of those periods the Adjudicators will review any request made/comments received and will indicate to the parties how they intend to proceed.”

18. On 1 February 2022, SAS replied, stating:

We refer to your correspondence dated the 27 January 2022 and the contents are noted. In the circumstances it seems appropriate that the Company Vedamain Limited should also be joined as an Applicant to the application and that this letter should be treated as an application to amend. This will not impact on the substantive application….

Question 6

The applicants’ request to have Vedamain Limited joined to the proceedings

Accepted Answer

19. We began by noting that the respondents elected not to comment upon the above request. Rule 6(2) of The Company Names Adjudicator Rules 2008 (“the rules”) reads:

The adjudicator may give such directions as to the management of the proceedings as he thinks fit, and in particular he may—
(a) direct a document to be filed or to be copied to a party to proceedings within a specified period;
(b) allow for the electronic filing and sending of documents;
(c) direct how documents filed or sent electronically are to be authenticated;
(d) direct that a document shall not be available for public inspection;
(e) require a translation of any document;
(f) direct that a witness be cross-examined;
(g) consolidate proceedings;
(h) direct that proceedings are to be heard by more than one adjudicator;
(i) direct that part of any proceedings be dealt with as separate proceedings; or
(j) suspend or stay proceedings.

20. As one can see, the powers available to us are wide. In addition, the use of the words “in particular” makes it clear that our powers are not limited to those contained in (a) to (j) above. In those circumstances and as (i) Vedamain Limited is referred to throughout Mr Thomas’ evidence, (ii) the respondents have commented upon that evidence in their Notice of defence, and (iii) the respondents have not objected to the applicants’ request, we were satisfied that it would be appropriate for us to exercise our case management powers in the applicants’ favour and, in so doing, allow Vedamain Limited to be joined as an applicant to these proceedings.

21. As a consequence, on 7 March 2022, the Tribunal wrote to the parties indicating that subject to the respondents right to be heard, Vedamain Limited would be joined to the proceedings. No request for a hearing was forthcoming.

Question 7

Decision

Accepted Answer

22. If the primary respondent defends the application, as here, the applicants must establish that they have 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 applicants 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.

Question 8

Do the applicants have the necessary goodwill/reputation?

Accepted Answer

23. The relevant date is the date of incorporation of the primary respondent which, in this case, is 30 July 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 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.

Question 9

Assessment of the applicants’ evidence

Accepted Answer

24. The applicants in these proceedings are now Nigel Thomas and Caroline Thomas T/A KingKabs and Vedamain Limited. In his evidence, Mr Thomas states that from the mid-1960s his father ran a taxi operator business in the north west under the name “KingKabs”. He explains that his father “took control of the business” in the 1980s and the business was run as a partnership until 1999. Vedamain Limited was incorporated on 28 August 1998 with his father and mother owning all the shares. Following the death of his father in 2001, Mr Thomas states that “we have continued trading as “KingKabs” under the name Vedamain Limited” with Mr Thomas and his wife owning all the shares. Prior to the covid pandemic the business was, he states, worth in excess of £10m, transporting in excess of 5 million passengers per year and enjoying over 500 accounts. We note that in his apology, Mr Fairclough states:

…please be advised that this is in no way reference to KlngKabs who for over 50yrs has been servicing the people of Chester NT is in no reference to the owner of KingKabs….

25. Although Mr Thomas has not filed any evidence showing how the name relied upon is actually being used, a wide range of the posts provided in the exhibit to his statement mention KingKabs. We also note the above comment from Mr Fairclough and, importantly, the absence of any comments from Mr Hutchison which suggest that the respondents dispute the fact that trading has taken place under the name KingKabs in relation to a taxi firm operating in the geographical areas Mr Thomas mentions i.e. “Chester, Ellesmere Port and Cheshire area and also in Flintshire in the North West/North Wales.”

26. As a consequence, we are satisfied that at the date the primary respondent was incorporated, a taxi business had been conducted for many years under the name “KingKabs” in the geographical areas identified in Mr Thomas’ statement. As to the owner of that goodwill, Mr Thomas’ evidence appears to indicate from at least 1980 when his father “took control of the business” to 1999, the business traded as a partnership. Although this partnership may have consisted of Mr Thomas’ father and mother, the position is unclear. However, it appears that following the creation of Vedamain Limited in August 1998, from 1999 or 2000, it was through this legal entity the trade under the name “KingKabs” was conducted. There is, however, no evidence to indicate if the business conducted by the partnership under the name “KingKabs” was assigned to Vedamain Limited.

27. However, even if it was not, it appears that the business conducted under the name “KingKabs” by Vedamain Limited began in 1999 or 2000 and continued up to and beyond the date of the incorporation of the primary respondent. We are, therefore, satisfied that at the relevant date of 30 July 2020, at least Vedamain Limited had, for many years, conducted a taxi business under the name “KingKabs” in the geographical areas identified in Mr Thomas’ statement and that this trade had resulted in, at least, Vedamain Limited having the necessary goodwill to satisfy the requirements of section 69(1)(a) of the Act.

Question 10

Similarity of names

Accepted Answer

28. The other initial burden facing the applicants is that the company name is sufficiently similar to “KingKabs” to suggest a connection between the company and the applicants. The company’s name is “KINGKABS LIMITED.” The only difference between the two names is the presentation of the word “KingKabs”/“KINGCABS” and the inclusion of the word “LIMITED” in the primary respondent’s name. As the word “LIMITED” is used to describe a particular type of corporate entity it is not distinctive.

29. Notwithstanding the slight difference in presentation, as the word “KINGKABS” is the only distinctive component of the primary respondent’s name and as the differences in presentation are so insignificant they are likely to go unnoticed, we are satisfied that the primary respondent’s name is to be regarded as identical to the name under which the applicants have operated and generated goodwill, such that its use in the UK would be likely to mislead by suggesting a connection between the primary respondent and the applicants.

30. However, even if that is wrong, we are, for the reasons mentioned, further satisfied that the company name is sufficiently similar to the name relied upon by the applicants. As the ground specified in, at worst, subsection 69(1)(b) is established, the onus switches to the primary respondent to establish whether it can rely on any of the defences pleaded in the Notice of defence.

Question 11

Defences

Accepted Answer

31. The statutory defences under section 69(4) are set out at the beginning of this decision. The primary respondent is relying upon the following:

Section 69(4)(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;

32. Section 69(4)(c) of the Act relates to companies that were registered in the ordinary course of a company formation business being available for sale to the applicant on the standard terms of that business. There is no evidence to suggest that is the case in these proceedings. As a consequence, the defence based upon section 69(4)(c) fails and is dismissed accordingly.

Section 69(4)(e) - that the interests of the applicant are not adversely affected to any significant extent;

33. To affect adversely the interests of the applicants to any significant extent the company name must do more than just sit on the register at Companies House. The onus is on the primary respondent to show why its company name does not adversely affect the applicants’ interests to any significant extent. The onus is not on the applicants.

34. It is clear from the evidence provided that Nigel Thomas, Nigel Fairclough and Antony Hutchison are well known to one another having, it appears, been in a business relationship for some time before their falling out some time prior to July 2020. Although Mr Fairclough is no longer a director of the primary respondent, Mr Hutchison does not deny that he is an employee of Mr Fairclough at Riverside Cars.

35. There is no evidence explaining when Mr Fairclough first became interested in acquiring the business conducted by company no. 04528140 “KINGKABS LTD” (which was dissolved on 5 March 2019), nor is there any evidence that prior to the falling out between Mr Thomas and Mr Fairclough that Mr Fairclough had any interest in conducting any sort of trade under the name “KINGKABS.”

36. We also note, in particular, the timing of (i) the text sent by Mr Fairclough to Mr Thomas on 1 July 2020, (ii) the incorporation of “KLNGKABS LIMITED” on 5 July 2020 with Mr Fairclough as the only director, (iii) the withdrawing of insurance cover by Mr Fairclough on 7 July 2020 and, (iv) the incorporation of the primary respondent on 30 July 2020 (we note Mr Hutchison was appointed as a director on 26 August 2020, Mr Fairclough resigned on 27 August 2020 and the nature of that company’s business is described on the Companies House website as “Renting and leasing of cars and light motor vehicles”).

37. Having done so, on the balance of probabilities, it appears to us to be far more likely than not, that following the falling out in July 2020, the filing of, inter alia, the company the subject of this application formed, for example, part of a strategy on the part of Messers. Fairclough and Hutchison to either disrupt the applicants’ business or to offer them some advantage in persuading Mr Thomas to revert to the business relationship that existed prior to the falling out.

38. Mr Hutchison explains that he took over the primary respondent’s business and the name Kingkabs following Mr Fairclough’s retirement. Mr Hutchison explains he:

…must look at relocating to area he does not control and was looking to use Kingkabs to start again in an other area where I can Hire service maintain cars I must stress I will not be operating a taxi firm as Mechanics is what I know and always worked on the repair of taxis.

39. In his second witness statement, Mr Thomas responds to that comment in the following terms:

3. I do not accept Mr Hutchison’s evidence that it was an intention to commence a taxi business 60 miles away in Llandudno, North Wales. Mr Hutchison’s garage and all his trading activity is in the Saltney and Chester area. He has no associations or connections with Llandudno otherwise he would have said what those connections were.

4…The logic of Mr Hutchison’s evidence is that he wishes to use the name “KingKabs” for his garage repair workshop as a trading name in Saltney, Chester where he has traded for over 25 years. The suggestion that he would move this business after all those years is simply not credible….

40. We note that Mr Hutchison has elected not to reply to those comments. In addition, given his business relationship with Mr Thomas, it is surprising that Mr Hutchison gives no explanation as to why he wants to trade under the name “KINGKABS”.

41. Were the primary respondent to succeed in this defence, it would allow it to conduct a trade anywhere in the United Kingdom (including in the geographical areas identified by Mr Thomas) in relation to the identical services provided by the applicants under a name either identical or highly similar to that in which the applicants’ taxi business has goodwill. In those circumstances, it is inevitable the name would mislead by suggesting a connection between the primary respondent and the applicants.

42. In addition, not only would that prevent the applicants from registering the name should they wish to, it is also likely to lead to damage to the applicants’ goodwill for the reasons explained in Ewing v Buttercup Margarine Company, Limited, [1917] 2 Ch. 1 (COA), where Warrington L.J. stated that:

To induce the belief that my business is a branch of another man’s business may do that other man damage in various ways. The quality of goods I sell, the kind of business I do, the credit or otherwise which I enjoy are all things which may injure the other man who is assumed wrongly to be associated with me.

43. Although that comment was made in the context of trade mark proceedings, it is equally applicable here. As the factors we have identified are, in our view, likely to affect the applicants’ interests to a significant extent, the defence based upon 69(4)(e) also fails.

Question 12

Outcome

Accepted Answer

44. As we have dismissed both defences, the application succeeds.

45. Therefore, in accordance with section 73(1) of the Act, we make the following order:

(a) KINGKABS LIMITED shall change its name within one month of the date of this order to one that is not an offending name;
(b) KINGKABS LIMITED and Antony Hutchison each shall:
(i) take such steps as are within their power to make, or facilitate the making, of that change;
(ii) not cause or permit any steps to be taken calculated to result in another company being registered with a name that is an offending name.

46. In accordance with Section 73(3) of the Act, this order may be enforced in the same way as an order of the High Court or, in Scotland, the Court of Session.

47. In any event, if no such change is made within one month of the date of this order, we will determine a new company name as per section 73(4) of the Act and will give notice of that change under section 73(5) of the Act.

48. All respondents, including Mr Hutchison, have a legal duty under Section 73(1)(b)(ii) of the Act not to cause or permit any steps to be taken calculated to result in another company being registered with an offending name; this includes the current company. Non-compliance may result in an action being brought for contempt of court and may result in a custodial sentence.

Question 13

Costs

Accepted Answer

49. As the applicants 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:

Filing the application and reviewing the defence: £400
Fee for filing the application: £400
Filing evidence: £700
Fee for filing evidence: £150
Written submissions: £100

Total: £1750

50. We order KINGKABS LIMITED and Antony Hutchison (jointly) to pay to Nigel Thomas, Caroline Thomas and Vedamain Limited (jointly) the sum of £1750 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 uphold the application; there is no right of appeal in relation to costs.

51. 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.

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

Dated 6 April 2022

Christopher Bowen
Judi Pike
Heather Harrison
Company Names
Adjudicator

Decision on Kingkabs Limited

Companies Act 2006

The defence

Representation

Evidence

The respondent’s evidence contained in its Notice of Defence

The applicants’ reply to the Notice of defence

The applicants’ request to have Vedamain Limited joined to the proceedings

Decision

Do the applicants have the necessary goodwill/reputation?

Assessment of the applicants’ evidence

Similarity of names

Defences

Outcome

Costs

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Companies Act 2006

The defence

Representation

Evidence

The respondent’s evidence contained in its Notice of Defence

The applicants’ reply to the Notice of defence

The applicants’ request to have Vedamain Limited joined to the proceedings

Decision

Do the applicants have the necessary goodwill/reputation?

Assessment of the applicants’ evidence

Similarity of names

Defences

Outcome

Costs

Is this page useful?

Help us improve GOV.UK

Help us improve GOV.UK