Decision

Decision on Marcus By GS Limited

Published 22 September 2022

Order under the Companies Act 2006

In the matter of application No. 3918

For a change of company name of registration No. 13399691

Decision

The company name MARCUS BY GS LIMITED has been registered since 14 May 29021 under number 13399691.

By an application filed on 23 May 2022, GOLDMAN SACHS INTERNATIONAL applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (the Act).

A copy of this application was sent to the primary respondent’s registered office on 23 June 2022, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008. The copy of the application was sent by Royal Mail “Signed For” service and also by standard mail. On 23 June 2022, the Tribunal wrote to Nicolae Hriscu to inform him that the applicant had requested that he be joined to the proceedings. No comments were received from Nicolae Hriscu in relation to this request. On 1 August 2022, the Tribunal wrote to the parties to advise the adjudicator was minded to suspend the application because company no. 13399691 was the subject of a compulsory strike - off action. The parties were granted a period of 14 days to state whether they agreed to the suspension of the application. On 11 August 2022, the applicant notified that it objected to the suspension of the proceedings on the basis that the continued use of the name pending the strike off application was likely to continue to cause confusion and lead to members of the public associating the company with the respondent company and may also prompt consumers and other third parties to share sensitive financial information with the company in the belief that it is authorised to carry on regulated activities.

On 23 August 2022, the parties were advised that the adjudicator had reviewed the file and, whilst the applicant’s reasons for objecting to the proposed suspension were not persuasive, the adjudicator’s preliminary view was that, in view of the stage of the proceedings and as no defence has been filed within the period allowed, it was not appropriate to suspend the proceedings pending the application to strike-off. On 23 August 2022 therefore, Nicolae Hriscu was joined as a co-respondent. Also, on 23 August 2022, the parties were advised that no defence had been received to the application and so the adjudicator may treat the application as not being opposed. The parties were granted a period of 14 days to request a hearing in relation to this matter, if they so wished. No request for a hearing was made.

The primary respondent did not file a defence within the one month period specified by the adjudicator under rule 3(3). Rule 3(4) states:

The primary respondent, before the end of that period, shall file a counter-statement on the appropriate form, otherwise the adjudicator may treat it as not opposing the application and may make an order under section 73(1).

Under the provisions of this rule, the adjudicator may exercise discretion so as to treat the respondent as opposing the application. In this case I can see no reason to exercise such discretion and, therefore, decline to do so.

As the primary respondent has not responded to the allegations made, it is treated as not opposing the application. Therefore, in accordance with section 73(1) of the Act I make the following order:

(a) MARCUS BY GS LIMITED shall change its name within one month of the date of this order to one that is not an offending name;^{[footnote 1]}

(b) MARCUS BY GS LIMITED and Nicolae Hriscu each shall:

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

(ii) not cause or permit any steps to be taken calculated to result in another company being registered with a name that is an offending name.

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

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

All respondents, including individual co-respondents, have a legal duty under Section 73(1)(b)(ii) of the Companies Act 2006 not to cause or permit any steps to be taken calculated to result in another company being registered with an offending name; this includes the current company. Non-compliance may result in an action being brought for contempt of court and may result in a custodial sentence.

GOLDMAN SACHS INTERNATIONAL, having been successful, is entitled to a contribution towards its costs. I order MARCUS BY GS LIMITED and Nicolae Hriscu, being jointly and severally liable, to pay GOLDMAN SACHS INTERNATIONAL costs on the following basis:

Fee for application: £400
Statement of case: £200

Total: £600

This sum is to be paid within seven days of the expiry of the appeal period or within seven days of the final determination of this case if any appeal against this decision is unsuccessful.

Any notice of appeal against this decision to order a change of name must be given within one month of the date of this order. Appeal is to the High Court in England, Wales and Northern Ireland and to the Court of Session in Scotland.

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

Dated 22 September 2022

Susan Eaves
Company Names Adjudicator

1. An “offending name” means a name that, by reason of its similarity to the name associated with the applicant in which he claims goodwill, would be likely to be the subject of a direction under section 67 (power of Secretary of State to direct change of name), or to give rise to a further application under section 69. ↩