Notice

Decision on Meta Platforms Incorporated Ltd

Updated 23 January 2024

Companies Act 2006

In the matter of application No. 3900 by Meta Platforms, Inc for a change to the company name of META PLATFORMS INCORPORATED LTD, company registration No. 13804448

Background and context

1. This decision deals with an objection to a company’s registered name, raised under section 69 of the Companies Act 2006 (“the Act”) by the Meta Platforms, Inc. (“the Applicant”).  The Applicant, previously known as Facebook, Inc., owns and operates the social networking service, mobile application and website, Facebook, which has operated since February 2004.  The Applicant also owns Instagram and WhatsApp.  Instagram is a photo/video sharing and editing service, software application, social network, retail and advertising platform; WhatsApp is a telecommunications app and platform.

2. On 31 May 2022, the Applicant, through its legal representatives, D Young & Co LLP, filed a Form CNA1 in objection against the name of Company Registration No. 13804448 incorporated on 16 December 2021, namely, META PLATFORMS INCORPORATED LTD (“the Respondent”).^{[footnote 1]}  The register at Companies House gives the nature of the Respondent’s business as Information technology consultancy activities; Public relations and communications activities; Advertising agencies; Media representation services.

3. Section 69 of the Act provides, among other things, that a party can apply for a company to be directed to change its name if it is shown that the name was chosen with the principal intention of seeking money from an applicant or preventing an applicant from registering the name, where the name is sufficiently similar to one in which the applicant has acquired goodwill, such that its use in the United Kingdom would be likely to misleadingly suggest a connection between the company and the applicant.

4. The Applicant requests an order under section 73 of the Act for a change of name to one that does not contain “META PLATFORMS”, “META” or any other confusingly similar name or any other name that is an offending name (also taking into account the Applicant’s ultimate ownership of Instagram LLC, WhatsApp LLC and the Applicant’s former name Facebook, Inc.).  The Applicant also requests costs.

5. The Applicant claims that the Respondent’s name was chosen opportunistically.  It was on 28 October 2021 that Facebook, Inc. launched its corporate name rebrand to Meta Platforms, Inc.  That announcement drew immediate global press coverage, including within the UK.  The Respondent was incorporated less than eight weeks later.  The Applicant claims that the timing of the Respondent’s incorporation and the almost identical nature of the name to the Applicant, show an intentional attempt to create a link with the Applicant.^{[footnote 2]}  The Applicant notes that the Respondent did not choose any distinctive elements apart from the name associated with the globally recognised Applicant (‘Meta Platforms’).  The only other elements – ‘Incorporated’ and ‘Limited’ are: (i) present in the Respondent’s name (‘Inc’ being a well-known and accepted abbreviation for “Incorporated”); (ii) descriptive; and / or (iii) required for a limited private company in the UK.

6. Section 69 of the Act states:

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

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

(b) that it is sufficiently similar to such a name that its use in the United Kingdom would be likely to mislead by suggesting a connection between the company and the applicant.

(2) The objection must be made by application to a company names adjudicator (see section 70).

(3) The company concerned shall be the primary respondent to the application

Any of its members or directors may be joined as respondents.

(4) If the ground specified in subsection (1)(a) or (b) is established, it is for

the respondents to show―

(a) that the name was registered before the commencement of the activities on which the applicant relies to show goodwill; or

(b) that the company―

(i) is operating under the name, or

(ii) is proposing to do so and has incurred substantial start-up costs in preparation, or

(iii) was formerly operating under the name and is now dormant; or

(c) that the name was registered in the ordinary course of a company formation business and the company is available for sale to the applicant on the standard terms of that business; or

(d) that the name was adopted in good faith; or

(e) that the interests of the applicant are not adversely affected to any significant extent.

If none of these is shown, the objection shall be upheld.

(5) If the facts mentioned in subsection 4(a), (b) or (c) are established, the objection shall nevertheless be upheld if the applicant shows that the main purpose of the respondents (or any of them) in registering the name was to obtain money (or other consideration) from the applicant or prevent him from registering the name.

(6) If the objection is not upheld under subsection (4) or (5), it shall be dismissed.

(7) In this section “goodwill” includes reputation of any description.”

The Respondent’s defence

7. On 14 July 2022, acting through Briffa as its legal representatives, the Respondent filed a Form CNA2 giving notice of its defences based on sections 69(4)(a), (b), (d) and (e) of the Act.  I note the following points and claims from the narrative of the defence statement:

i. The Respondent denies any likelihood of confusion between the parties;^{[footnote 3]}

ii. It denies that the Respondent’s name incorporates the dominant and distinctive part of the Applicant’s corporate name, stating that a cursory search of the company register returns 14,749 hits for the search term “meta”; iii. The Respondent is stated to be a company set up to offer specialist advertising services in the mining industry;

iv. It denies any intention to try to create a link with the Applicant.  It is claimed that the Respondent was incorporated by Ms Dillys Wright, whose grandfather had worked in the steel industry in the field of metallurgy, “hence the incorporation of the word ‘meta’ in the company name” and that “the Respondent was incorporated solely as a tribute to Mrs Wright’s grandfather”;

v. the Respondent “is clearly a separate undertaking to that of the applicant” and the respondent was incorporated “before the Applicant had even filed trade mark applications for its so-called rebrand”;

vi. The Respondent submitted that these proceedings are just an attempt “to bully a competitor” into surrendering its company name;

vii. The Respondent does not deny that “Facebook, Inc. is a well-known brand” but argued that “that does not mean such reputation attaches itself to a new undertaking, particularly one embarked on so recently”;

viii. The Respondent put the Applicant to proof of various of its claims, including: - that “the relationship between the Applicant and its various platforms and subsidiaries has been widely publicised including in the UK”; - that “the Applicant’s META brand, as well as its US corporate name Meta Platforms, Inc. have consequently acquired a significant global reputation and goodwill, despite the relatively short time that has passed since the re-brand process took place at the end of October 2021”.

ix. The Respondent admits that the nature of the Respondent’s business listed at Companies House is correct, but states that those services “are all intended in respect of the specialist mining industry, a completely different sector to that the Applicant whose goods and services are targeted at the general public”.

x. The Respondent states that it has incurred substantial start-up costs in preparation for launching the company, including:

• £1008 branding fee for the logo design;
• £56 for letter heads and business slips;
• £9600 wages for staff;
• £5600 travel, accommodation and expenses for staff;
• £410,000 mortgage cover for commercial premises.

8. The Respondent also requested its costs.

Evidence filed

9. The Applicant included with its Form CNA1, extensive materials demonstrating the profile and value of Facebook, and examples of media coverage of its name change to Meta, including from the BBC, The Guardian and Forbes magazine.

10. During the evidence rounds the following materials were filed:

Applicant’s evidence in chief

(a) Witness statement of Austin Phillips, dated 29 September 2022,

introducing Exhibits AP1 – AP13.  Mr Phillips is Lead Counsel for Brands and Marketing Legal at the Applicant.

(b) Witness statement of Matthew James Dick, dated 29 September 2022, introducing Exhibits MJD1 – MJD10.  Mr Dick is a Partner at D Young &Co, the attorneys for the Applicant.

Respondent’s evidence

(c) Witness statement of Dillys Wright, dated 21 December 2022, introducing Exhibits DW1 – DW16.  Ms Wright is Director of the Respondent.

Applicant’s evidence in reply

(d) Witness statement of Matthew James Dick, dated 4 March 2023, introducing Exhibits MJD11 – MJD16.

Hearing

11. The Applicant wrote to the Tribunal, requesting an oral hearing and to cross-examine Dillys Wright on the claims made in her witness statement, particularly regarding the issue of the Respondent’s start-up costs as claimed by reference to Exhibits DW2-DW16, which the Applicant claimed revealed inconsistencies and “ostensibly false claims, amounting to unambiguous impropriety”.  The Tribunal allowed that request and a hearing was convened to take place at the International Dispute Resolution Centre (IDRC) in London on 22 June 2023.  On 14 June 2023, the Applicant confirmed that Matthew Dick of D Young & Co LLP would attend as its representative.^{[footnote 4]}  The Respondent’s legal representatives likewise provided the names of attendees, including appointed counsel, but on 16 June 2023, the Respondent’s legal representatives informed the Tribunal that they no longer represented the Respondent and that counsel would no longer be attending.  Ms Wright, however, confirmed that she would be attending for cross-examination by video-link from South Africa.  The video-link connection proved to be quite problematic on the day, with Ms Wright having to repeat parts of her oral evidence, some of which was disrupted in transmission.  I shall comment on the evidence, including Ms Wright’s cross-examination by Mr Dick later in this decision.

Skeleton arguments

12. The representatives for the Applicant filed a skeleton argument ahead of the hearing.

13. By the time of the hearing, the Respondent had no legal representation, and was not therefore required to file a skeleton argument.  Ms Wright nonetheless filed written submissions, which included points that would be considered evidential in nature.  However, what was filed was not only filed after the completion of the evidence rounds, but did not contain a statement of truth, and does not constitute evidence properly filed or admitted into the proceedings.  Moreover, what was filed contained numerous hyperlinks, none of which I have accessed.  This is because the material to which a hyperlink connects is not stable but subject to editing at any stage.  I bear in mind what was filed by Ms Wright only to the extent that it constitutes submissions.  However, I note that at the hearing itself Ms Wright anyway covered some of the points from her pre-hearing skeleton.

Decision

14. In order to be entitled to seek to change the company name, the onus rests on an applicant to establish the premises set out in section 69(1) of the Act.  It is therefore for the Applicant to show either that the name of the Respondent company - namely META PLATFORMS INCORPORATED LTD - is the same as a name associated with the Applicant in which it has goodwill, or 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 Respondent and the Applicant.

15. The names with which the Applicant claims to be associated and in respect of which it claims goodwill are META and META PLATFORMS.  The Applicant claims to have established goodwill by reference to those names between 28 October 2021 (when Facebook announced and launched its rebrand) and 31 May 2022, which is the date on which the Applicant filed its objection to the Respondent’s registered company name.  The Applicant must show that it had goodwill by that relevant date (31 May 2022).  The Respondent accepts that Facebook had goodwill, but challenges the Applicant to show that such reputation transferred to the Applicant’s rebranded company name - Meta Platforms, Inc. – and that the Applicant’s META brand had acquired a significant reputation and goodwill by the relevant date.

16. The Act confirms that “goodwill” includes reputation of any description.^{[footnote 5]}  The concept of goodwill in this context is thus broader than what is necessary for a claim based on passing off.^{[footnote 6]}  Evidence in respect of the Applicant’s goodwill and reputation in META and META PLATFORMS is given in the Witness Statements of Austin Phillips and Matthew James Dick.  Mr Phillips provides a convincing account of the success of Facebook: a company valued in tens of billions of US dollars; its April 2012 acquisition of Instagram; its February 2014 acquisition of WhatsApp; its March 2014 acquisition of Oculus VR; its October 2016 launch of Marketplace (enabling users to sell goods and services); 1 billion people using WhatsApp every day by July 2017; 2.6 billion monthly active Facebook users by March 2020.  The global success of Facebook and its principal subsidiaries, including in the UK, is notorious, and the Respondent is right not to deny its goodwill and reputation.

17.  Moreover, I find that the evidence compellingly demonstrates that significant goodwill connected to Facebook Inc will have passed to the Applicant very quickly.  This is partly as a consequence of the exceptional level of global success of the Facebook brands,^{[footnote 7]} such that a re-branding of the parent company is itself a newsworthy event.  As Mr Dick’s evidence shows, re-branding from Facebook Inc to Meta Platforms Inc instantly garnered a large amount of press coverage and was heavily discussed in both business and consumer media.  As a result, the new corporate name ‘Meta Platforms Inc’ (as well as the shortened name ‘Meta’) gained recognition and a sizeable reputation essentially overnight.  Exhibit MJD4 shows a range of press articles from mainstream UK media sources, including The Telegraph, City A.M., The Independent, The Daily Mail (as well as from international news sources commonly read and frequently cited by business reporters within the UK, such as Bloomberg and the Wall Street Journal).  These articles date from the day of the rebrand, 28 October 2021 and beyond, and illustrate the high level of media exposure and awareness that UK users had of the rebrand.

18.  Awareness of the rebrand is supported elsewhere in the evidence, including media coverage in December 2021 of the renaming of Oculus VR headset as Meta Quest.^{[footnote 8]}The company’s success appears undiminished following re-brand, as in the three months ending on December 31 2021, Meta Platforms’ revenue totalled over 33 billion U.S. dollars.^{[footnote 9]}  In the UK, as of 27 October 2021, 42 million people accessed Facebook every month on mobile, with 33 million people accessing Facebook every day.  And by 4 May 2022, 44 million people in the UK accessed Facebook every month.  Mr Phillips attests that the wording “From Meta” is the only verbal trade mark referred to on the application launch pages for Facebook, Instagram and WhatsApp, such that the Applicant has effectively educated all consumers on each of those highly successful platforms to recognise and rely on the Meta / Meta Platforms brand as the key indicator of commercial origin for all of the Applicants goods and services.^{[footnote 10]}

19. Moreover, the Applicant heavily promoted the Meta Platforms and Meta brands on its social networking profiles, including on Instagram, Facebook and Twitter.^{[footnote 11]}  To protect its notable reputation in the UK the Applicant filed UK trade mark applications for META PLATFORMS and META, with priority dates of October 2021 (i.e. before the date of incorporation of the Respondent) and covering a range of goods and services, including advertising services, media planning, marketing and promotion services in class 35 and IT services in class 42.

20. Mr Phillips also provides evidence of use of Meta / Meta Platforms for business and advertising and related advisory services and for an IT collaboration tool for business.^{[footnote 12]}

21. I find that the Applicant enjoyed goodwill based on META and META PLATFORMS within the UK by the relevant date.  That reputation and goodwill relates to the Applicant’s renown in the UK as a provider of software applications, social networking and telecommunication services, business and advertising services and services relating to the recording, editing and sharing of audiovisual and other user-generated content.

Same or similar Name likely to mislead

22. I fully accept the position taken by the Applicant, that the Respondent’s registered name incorporates the dominant and distinctive elements of the Applicant’s corporate name (i.e. ‘Meta Platforms’ or ‘Meta’) in which the Applicant owns significant goodwill/reputation.  Furthermore, the Respondent is classified under fields of business which are similar or identical to the Applicant’s own commercial interests, further reinforcing the link with the Applicant and increasing the likelihood that consumers will be misled.  Indeed, in its counterstatement, the Respondent identifies itself as a competitor of the Applicant.  The Respondent’s claim in its defence counterstatement that its listed business interests “are all intended in respect of the specialist mining industry” is of no assistance.  A company is at liberty to change its business focus, but as it stands the register at Companies House the Respondent makes no mention of an interest in the mining industry.  Nor is there any corroborative evidence to show that the Respondent or Ms Wright has any experience, background or demonstrable active interest in the mining industry, notwithstanding Ms Wright’s witness statement evidence that her family had connections to the steel industry.

Respondent’s defences

23. Since I have found that the Applicant has established its claims under Section 69(1)(a) and (b) under the Act, the onus moves to the Respondent to prove the defences claimed under sections 69(4)(a), (b), (d) and (e), namely that:

i. The name was registered before the commencement of the activities on which the applicant relies to show goodwill or reputation - s.69(4)(a);

ii. the company has incurred substantial start-up costs in preparation - s.69(4)(b)(ii);

iii. the name was adopted in good faith – s.69(4)(d); and

iv. the interests of the Applicant are not adversely affected to any significant extent - s.69(4)(e).

24. As I shall explain below, the evidence filed by the parties and confirmed during cross-examination shows that none of the defences claimed by the Respondent is valid in the present case.

25. It is noted that in any event, under section 69(5) of the Act, even had the Respondent established its pleaded defences based on section 69(4)(a) and/or (b), the Applicant’s objection to the Respondent’s name would still be upheld if the Applicant shows that the main purpose of the Respondent in registering the name was to obtain money from the Applicant.  As I set out later in this decision, I find that the evidence establishes that this was indeed the Respondent’s intention from the outset.

The section 69(4)(a) defence

26. As will be clear from my earlier account of the history of the Applicant, the activities of Meta Platform Inc, as the re-branded parent company Facebook Inc, on which it relies to show goodwill or reputation in ‘Meta’ and ‘Meta Platforms’ started well before 16 December 2021, which is the date on which the name of the Respondent was registered.  The Respondent’s defence under section 69(4)(a) of the Act therefore fails.

The section 69(4)(b)(ii) defence

27. The Respondent claims to have incurred substantial start-up costs in preparation for operating under its registered name.  I have previously set out some of the costs given in the narrative defence statement in the Respondent’s Form CNA2.^{[footnote 13]}  Ms Wright’s own witness statement evidence contradicts the claims made in the Respondent’s defence.  For instance, in Ms Wright’s witness statement there is no mention of the most substantial cost claimed in the Respondent’s defence – the £410,000 mortgage cover for commercial premises.  Nor is there any mention of the £9600 wages for staff.  Conversely, Ms Wright’s witness statement includes substantial costs that were not mentioned in the defence statement, particularly:

i. “£25,540.12 on the lease for premises used in connection with the company’s business (before it was formally incorporated) since 4 April 2019 as shown at Exhibit DW2;”^{[footnote 14]}

ii. $250,000 by way of a loan for my late father’s estate in South Africa on 21 December 2021 in anticipation ongoing operational costs as shown by the bank statement at Exhibit DW7;”^{[footnote 15]}

iii. “AED 19,115.58 (approximately £4203.21) for a place at UNFCCC COP 28 taking place in the UAE which will be an opportunity to further develop global partnerships to scale the company and resource investment as shown at Exhibit DW15”.

28. Ms Wright’s own witness statement evidence also contradicts the claims made in the letter of 20 October 2022 from Briffa, then acting as the legal representatives for Ms Wright, addressed to Matthew Dick at the Applicant’s representatives.  I will return to the content and (frankly damning) implications of that letter, filed as Exhibit MJD16, later in this decision.  For now, for the purposes of my consideration of the Respondent’s defence under section 69(4)(b)(ii) I note that the letter lists the claimed “start-up costs” as including:

i. “£200,000 associated development costs based on a typical engagement; and

ii. “£4000 in legal costs”.

29. I will therefore give my findings on the following major aspects of the start-up costs raised by the Respondent whether in the defence statement, the witness statement of Ms Wright or in her representatives’ letter at Exhibit MJD16, namely:

i. £9600 wages for staff;

ii. £5600 travel, accommodation and expenses for staff;

iii. £410,000 mortgage cover for commercial premises;

iv. £25,540.12 lease for the company’s business premises;

v. $250,000 loan for ongoing operational costs;

vi. £4203.21 for a place at UNFCCC COP 28;

vii. £200,000 associated development costs;

viii. £4000 in legal costs.

30. In relation to staff costs, Ms Wright admitted in her oral evidence under cross-examination that she had no paid employees on 16 December 2021, when the Respondent was incorporated, nor indeed on 31 May 2022, when the Applicant filed its objection to the Respondent name.  When Ms Wright was asked by Mr Dick, what then was meant by the nearly £10,000 claimed in the defence, she stated it referred to “representatives”, by which, Mr Dick clarified, Ms Wright meant external advisers such as Briffa.  I agree with Mr Dick that “wages for staff” would more naturally be understood as referring to employees or paid consultants, and is strange way to refer purely to external legal counsel.  I note that the Respondent filed no invoices or other supporting evidence in respect of legal expenses.  I also note that the letter from Briffa (Exhibit MJD16) – sent on 20 October 2022 – refers to £4000 legal expenses, a sum substantially less than the £9,600 claimed in the defence filed on 14 July 2022.  I find the evidence fails to show relevant staff expenses, so I discount the claimed start-up costs listed in paragraph 29(i), (ii) and (viii) above.

31. The Respondent filed no evidence relating to the £410,000 in respect of commercial premises.  Under cross-examination Ms Wright agreed that it was not a start-up cost, despite what had been claimed in the defence.  In further explanation of that £410,000 figure, Ms Wright stated under cross-examination that it related to:

a business that I wanted to buy and acquire. … It was the quotation I was given for the bank, if I wanted the business, that is the mortgage for that commercial property. … It is acquiring media advertising, the commercial property for the business in terms of something that is a stand‑alone property; I can do media and advertising printing out papers, printing out documents, printing on a substantial scale now.  I have not found the right one.  Just like with anything, I have to find something that fits within the needs of the company, the needs of the clients that I serve, so I have not found anything that I think to myself that is a viable, you know, business or company.

32. The account heard from Ms Wright was not entirely coherent, not helped by the very poor internet connection, but in any event it appears to relate to a cost – whether for a business acquisition or business premises - not actually incurred.  It is clearly not a relevant start-up cost, so I discount the claimed start-up costs listed at paragraph 29(iii) above.

33. The £25,540.12, claimed in Ms Wright’s witness statement to be in respect of “lease for premises used in connection with the company’s business” was addressed in some detail in the cross-examination.  The lease in question relates to a flat in Sutton Way, Kensington W10, a copy of which was presented at Exhibit DW2.  During cross-examination, Mr Dick highlighted various factors that cast doubt on the reliability of Exhibit DW2 as evidence of a valid start-up cost.  For instance, at the top of that document, it states that it is an assured shorthold tenancy.  Ms Wright confirmed that the lease is for a flat in which she has lived since April 2018, as noted on its first page.  (Every other page of the exhibit refers to 2019, which Ms Wright explained was attributable to typographical error.)  Exhibit MJD14 shows Government guidelines relating to the type of assured shorthold tenancy relied on as Exhibit DW2.  Those guidelines stipulate that a property subject to an assured shorthold tenancy must be the tenant’s main accommodation, and that a tenancy cannot be an assured shorthold tenancy if “it is a business tenancy ..”.  Ms Wright stated that her landlord had agreed that she could use the property for business.  Mr Dick argued that the Respondent would not be able use the leased property because the type of lease itself specifically prohibits that.  Mr Dick cast further doubt on the reliability of clause 7(l) in the lease at DW2.  Clause 7 opens with the words “The Tenant will” then lists various obligations as sub-clauses that follow on grammatically from the introductory verb (“will”).  Clause 7(l), however, looked a little different from all the other clauses.  It looks like this:

34. Mr Dick put it to Ms Wright that sub‑clause (l) appears doctored, as it seems to be in a larger font than the other sub‑clauses, slightly crisper and sharper, and that the spacing between sub‑clause (l) and (m) is larger than the otherwise uniform and standardised spacing between the other sub‑clauses.  Ms Wright did not agree.  For my part, I do agree with Mr Dick’s observations.  Ms Wright suggested that the lease might have been altered by the landlord, perhaps tailoring the lease from a model example of an assured shorthold tenancy.  I do not rule out that possibility, though there is no evidence to support that.  In any event, I find that no weight may be given to the lease at Exhibit DW2, not only taking account of the apparent prohibitive stipulation in the Government guidance, but mainly because the document has been redacted, obliterating the signature of the tenant, along with the name, address and signature of the landlord.  The boxes to record the presence of witnesses are blank.  The lease includes Ms Wright’s personal name, and there is a lack of evidence connecting this lease with the business Ms Wright claims to be operating under the Meta Platforms Incorporated Limited name.^{[footnote 16]}  The address is not shown on any of the letterheads or business cards that Ms Wright claims to have ordered for the company.

35. Moreover, even if the lease was validly entered into, it clearly relates to Ms. Wright’s primary residence.  It seems to me doubtful that the whole cost of the lease, could be regarded as a business start-up expense as there will be no incremental costs to resident tenant for using those premises for, for example, occasionally working from home.  There is also no evidence that Ms Wright was paying business rates, nor any corroborative evidence that any business was being conducted from the premises at all.  Indeed, it is noted that a defence under section 69(4)(b)(i) - namely that the respondent has been actively operating under the name - has not been pleaded.

36. I find the evidence fails to establish the claimed start-up cost listed at paragraph 29(iv) above.

37. I found Ms Wright’s account of the nature of her business interests and activities to be vague indeed.  She several times used phrase such as “media” and “advertising”, but gave no clear response to Mr Dick’s question about what activities specifically were undertaken at any of the properties mentioned in the Respondent’s filed papers in these proceedings.  Ms Wright gave no real explanation of what were the “ongoing operational costs” to be covered by the claimed $250,000 loan from her father’s estate as listed at paragraph 29(v) above.  In view of the lack of information and evidence provided on the point, I also find that the Respondent has failed to establish its claimed “£200,000 associated development costs” listed as a start-up cost at paragraph 29(vii) above.

38. The sum listed at paragraph 29(v) is itself the subject of significant doubt.  Ms. Wright claims in her witness statement that this sum was paid in dollars, but the type of dollar is not there specified.  At Exhibit DW7 is a bank statement showing a deposit made on 21 December 2021 into a Zimbabwean bank account, bearing Ms. Wright’s personal name.  The deposit is in the sum of 250,000, but no currency is attributed in that bank statement.  Mr Dick submitted that this payment has clearly been made in Zimbabwean dollars, as the most natural and obvious default currency for a Zimbabwean bank account held in Harare, Zimbabwe.  At the bottom of the bank statement, USD as an acronym for United States dollars is defined in the footer of that statement, along with other acronyms, such as GBP for Sterling Pound and EUR for Euro.  Mr Dick submitted that this supports the Applicant’s submission that Zimbabwean dollars is the relevant currency likely for the account, since why else would the bank then need to define US dollars separately.  The acronym USD (as defined) does not appear alongside the 250,000 deposit.  Mr Dick reported that as based on the currency exchange rate around the date of the hearing of these proceedings, Z$250,000 was around £540 and in October 2022, the date of the statement, was around £610, and submitted that either sum is far from the substantial start‑up costs that the Respondent needs to prove.

39. I agree with Mr Dick’s analysis that there is good reason to believe that the deposit was in Z$250,000.  If it were the sizeable and formal business loan stated by Ms Wright, it is surprising that Ms. Wright has provided no formal documentation confirming the terms on which the loan was made, any interest rates applicable, if any, et cetera.  In any event, whatever the value of the deposit there is no corroborating evidence that it constituted a loan of any kind; the payment could simply be a gift or a bequest from the estate of a late father to his daughter.  The payment is shown to have been made to a personal account, not a business account, and it is not clear from the evidence to what the deposit relates or who made it.  The bank statement at Exhibit DW7 shows simply the reference is “A Mvula”.  I find the evidence fails to establish the claimed start-up cost listed at paragraph 29(v) above.

40. The last of the major aspects of the start-up costs raised by the Respondent listed at paragraph 29 above is £4203.21 for a place at UNFCCC COP 28.  Ms Wright refers in her witness statement to the supporting document at Exhibit DW15.  However, Exhibit DW15 has no corroborative value whatever.  It simply shows a booking for 4 rooms, in the following way:

41. While I accept that this appears to be a booking confirmation for a hotel in Dubai, not only does the above not show the year of the booking and is addressed to Ms Wright personally, it does nothing to show a start-up cost attaching to Meta Platforms Incorporated Limited, nor does it even substantiate the purpose of the booking.  I find that the Respondent has failed to establish its claimed £4203.21 listed as a start-up cost at paragraph 29(vi) above.

42. In view of my findings rejecting those major items claimed by the Respondent as start-up costs, I do not consider it necessary to address each of the other smaller costs claimed (although it was noted at the hearing that there were number of discrepancies and inconsistencies between the amounts claimed).  I do however consider it valid to note one of the points of evidence put to Ms Wright in cross-examination, relating to her claim in respect of business stationery, which Ms Wright was ordered “some nine months before the Applicant launched its so-called rebrand”.  If that were shown to be the case, it would be important evidence in favour of the Respondent.  Exhibit DW3 shows, on its first page, an invoice from Vistaprint dated 29 January 2021 directed to Ms Wright at her address in Sutton Way, Kensington W10 in relation to the provision of 100 business cards and 25 letterheads.  The invoice is indeed shown to be from 9 months before the Applicant announced its change of name, but nowhere in the invoice evidence is there a reference to the name of the Respondent.

43. In Exhibit DW3, on its fourth page, there is included this image:

44. Mr Dick directed Ms Wright to the above, which he described as “an image of two fingers holding what looks to be some kind of business card.”  I note from the hearing transcript the following exchange in cross-examination:

Mr Dick: Is that a photo you took yourself of the business cards that you ordered for the company?

Ms Wright:  Yes, that’s correct.

45. Ms Wright was then directed to Exhibit MJD13, which shows this image:

Zooming in slightly the above image, filed by the Applicant, may be compared side-by-side with the image filed by the Respondent.

Respondent’s Exhibit DW3

Respondent’s Exhibit MJD13

46. The cross-examination exchange continued:

Mr Dick: .…. as you can see, [Exhibit MJD13] is a virtually identical picture of, looking at the nails and the shading, the same two fingers holding the same shaped business card with my firm ‘s on it and indeed the same wood grain background as if it was taken on a table or desk.  Would you admit those two images are, if not identical, implausibly close?

Ms Wright: Not necessarily.

Mr Dick: But you claim that you took the photograph back on tab 39 of the exhibit [DW3]?

Ms Wright: Yes, correct.

Mr Dick: I put it to you that those images are identical.

Ms Wright: ay I say?

Mr Dick: Please go ahead.

Ms Wright: As a backdrop of an IKEA table you can go and have a look at the IKEA tables yourself and you will see what I mean.

Mr Dick: Of course, the table here is very similar, I have to say, but the very shape of these business cards; I have never seen them quite so elongated.  They tend to be slightly more proportionate, with a thicker space between the fingers, and they are almost identical as I say in terms of shape and proportion.  As I say, I would find that quite staggering if that was a photograph you took yourself.

….

Mr Dick: So, that image we have got there at image MJD13, tab 31, we did not actually place an order for those business cards.  What we did was, as the earlier pages in that tab show, we went through and mocked up how the cards would appear if we had placed an order.  Is it not the case that you never placed an order for those business cards relating to the company?  You merely got to the point of mocking them up for the purposes of your evidence without actually ordering any?

47. Ms Wright replied that she ordered “several batches of business cards”.  I note that the second page of Exhibit DW3 does show information relating to another order from Vistaprint for stationery, but as Mr Dick noted at the hearing, missing from that second page are the order details, setting out name, address and, most importantly, the date of the order.  There is again no reference to the Respondent company name.

48. It is my view that Ms Wright was not being truthful when she stated that she took the photograph shown at Exhibit DW3.  Firstly, it seems to me that it would be odd for Ms Wright to have filed a photograph of a printed business card that is obliterated as it is in the image. Ms Wright stated that the redaction was simply of her name and contact details; I do not understand why she would wish to redact her name from her business card, but in any event the exhibit does not even show the full company name, but cuts off at “Meta Platforms Inco”.  Secondly, I agree that the image appears more elongated than a typical business card, and thirdly, and most importantly, I find that on a very straightforwardly objective comparison the image at Exhibit DW3 is quite clearly based on the same Vistaprint mock-up process that the Applicant shows in Exhibit MJD13.  I disbelieve Ms Wright’s oral evidence on the image of the business card, presented alongside (but separate from) the invoice evidence in Exhibit DW3.  I find this casts doubt on her credibility in other aspects of the evidence, especially when considered in light of the numerous inconsistencies and glaring absences identified.  I find that the Applicant has failed to show its claim, that Ms Wright ordered business stationery bearing the name of the Respondent “some nine months before the Applicant launched its so-called rebrand”.

49. The Respondent has failed to show that the company has incurred substantial start-up costs in preparation for operating under the name Meta Platforms Incorporated Limited; its defence under section 69(4)(b)(ii) of the Act therefore fails.

The section 69(4)(d) defence

50. The Respondent also claims in its defence that the name was adopted in good faith.  It is clear from the evidence that this defence is not sustainable in the present case.

51. The Respondent’s claim in its defence statement was that it was set up “to offer specialist advertising services in the mining industry”, and that the name was adopted in good faith as a tribute to Ms Wright’s grandfather, “Sir John Charles Wright of the Wright Baronetcy of Swansea, a British steel magnate working in field of metallurgy”.  Ms Wright filed no corroborative evidence to support that premise of a family background in steel.  I note that Ms Wright’s witness statement included a Wikipedia hyperlink to Sir_John_Wright,_1st_Baronet; firstly, the tribunal does not generally access hyperlinks for the reasons I gave earlier; secondly Wikipedia is crowd-edited and is not a strong corroborative source; thirdly, I did access the hyperlink which gave information on a Sir John Roper Wright, a British steel manufacturer, 1st Baronet of Swansea, and his son Sir William Charles Wright, 2nd Baronet, on whose death in 1950 the title became extinct.  So the link provided does not refer to a Sir John Charles Wright as stated by Ms Wright.

52. However, even taking at face value the evidence on this point from the written and oral statements by Ms Wright, her own witness statement later dilutes the initial claim by stating that the Respondent was incorporated “to transform textile, mining and food systems in order to prevent waste and to address issues surrounding climate change”.  I note that none of this is readily discernible from the selected description of the nature of business listed on Companies House “IT consultancy; PR and communication activities; advertising agencies; media representation services”, which makes no reference to metallurgy, mining, textiles, food or climate change.

53. I note the following extracts from the cross-examination:

Mr Dick: First, when precisely, could you tell us, did you first come up with the idea for Meta Platforms Incorporated Limited and specifically to call it by that particular name?

Ms Wright: It would be around 2014.  At that point I was looking at a consolidated venture in the mining sector and entrepreneurship sector.

Mr Dick referred Ms Wright to the claimed familial link with metallurgy and “hence the incorporation of the word Meta in the company name”;  he continued:

Mr Dick: I suppose one could just about see a link between mining and metallurgy, although none of your evidence explains or supports that link, so could you explain why you chose the word Meta in particular to reference the link with your grandfather?

Ms Wright: … when I chose the name, initially I wanted to call it the full metallurgy, but then in hindsight I thought it is a difficult word to pronounce so I abbreviated and shortened it to Meta.

Mr Dick: Why not use the word ‘metal’ or even ‘mining’; not very difficult to pronounce and they seem more appropriate and more obviously linked with metallurgy?

Ms Wright: So if I chose just purely metal it would also restrict me in what I could advertise and market in terms of services ….

Mr Dick: Am I right in saying therefore that you felt use of the word metal or even mining would restrict your activities of the company?

Ms Wright: Yes, that is correct, metal, as it is anyone that hears Metal Platforms to will automatically think it is to do specifically only with metal platforms, but with Meta I can elaborate to other things that is consistent (buffering) the activity of mining.

Mr Dick: Even though you do say it was specifically for that link with metal, metallurgy and mining, that that is why you set the company up?

Ms Wright: Meta for me is much more consistent with the vision that I have for the company.

Mr Dick: Okay.  So why did you choose to follow the word ‘meta’ with ‘platforms’?

Ms Wright: Beforehand I had dealt with different platforms in terms of my business dealings and I had not only chosen the word platforms for that specific reason but because I felt that it would broaden my offering in terms of business.

Mr Dick: What do you mean when you say you dealt with different platforms?  What do you mean by “platform” in that context?

Ms Wright: I mean hubs and business development platforms.

Mr Dick: Okay.  And what of the Incorporated?  That is simply a suffix to show that an entity has been formally set up under US corporate law, as I am sure you are aware, so why did you decide to include that word in your company name? 

Ms Wright: To broaden my company offering.

Mr Dick: Incorporating something suggests putting it into something; how would that broaden it?  You are doing the opposite, are you not?

Ms Wright: Incorporating it as a company, but meaning that I could explore different geographical locations, whether it is Africa, Asia, whether it is the Americas.

Mr Dick: But you went with the American one, Incorporated?

Ms Wright: Yes.

Mr Dick: Can you talk us through why the choice of that particular name Meta Platforms Incorporated is a tribute to your grandfather, other than the metallurgy link you say?

Ms Wright: It is more the name, me choosing Meta Platforms was more my grandfather’s interest in metallurgy.  That is the sole reason why I chose that…

Mr Dick: Can you talk us through why the choice of that particular name ‘Meta Platforms’ …  Giving the company his name would be the best form of tribute of all, would it not? 

Ms Wright: Not necessarily.  I felt that to further my interests with the business side of things I could always say well, my grandfather was a Wright Baronet of Swansea.  He dealt in mining as well as his business and this is why I have chosen this name.

Mr Dick: Okay. 

Ms Wright: And it would also open doors for me as his great granddaughter or granddaughter (buffering) within those particular sectors.

Mr Dick: Sure even though the name did not appear as such in the company name?  That is fine. 

54. Ms Wright states in her witness statement that “My grandfather’s background in metallurgy was the key factor in the inclusion of the word “META” in the Respondent’s name. This is an industry that not only my grandfather was involved in but also his grandfather, my father and now me.  Addressing the impact this industry has on climate change has been one of my life’s key goals: I recognise that it must pivot towards sustainable practices through utilising media, advertising and entertainment to educate key stakeholders. This was my primary motivation in incorporating the Respondent and the company’s work is based on the UN’s sustainable development goals.”^{[footnote 17]}

55. I have commented on the vague and shifting references to Ms Wright’s actual business activities and to the lack of corroborative evidence for those multifarious claimed interests.^{[footnote 18]}  I note Ms Wright’s Exhibit DW10 is said to show “£600 spent in advertising fees with Mail Metro used to promote a sustainable garment initiative with Vision Platform Ltd dated 3 February 2022”.  This exhibit does feature the words Meta Platforms and includes four images, three of which I show here:

56. Each of the images in Exhibit DW10 is shown on a separate page in the exhibit, but I am not satisfied that it presents a true whole or that it is of any evidential value to the Respondent.  This is for several reasons.

57. Firstly, although the image with the kimono has the text “Join Vision Platform Ltd x Meta Platforms Incorporated Ltd in our Retail Sustainability Project”, it certainly does not look as though it is an advert in a publication; it appears more like a skeleton draft outline, not least because it provides no relevant information for a prospective reader – where? when? why, etc?

58. Secondly, Ms Wright states that the £600 advert relates to “3 February 2022”; however, the (entirely de-contextualised) Barclays debit card purchase for £600 is shown as Monday, 3 February.  It is noted that 3 February 2022 was not a Monday.^{[footnote 19]} Exhibit DW10 therefore does not show what Ms Wright stated it to show.  I am not satisfied that it establishes that an advert promoting the Respondent was actually published or paid for at the date claimed.

59. Finally, I note that Exhibit DW10 is not alone in the evidence in making reference to Vision Platform Ltd.  This is company number 12666629, of which Ms Wright is a director.  It was incorporated on 12 June 2020 and its address is Sutton Way W10 (Ms Wright’s residence).  The nature of the business of Vision Platform Limited is show on Companies House as covering: Other mining and quarrying not elsewhere classified; Other retail sale not in stores, stalls or markets; Management consultancy activities other than financial management; Other professional, scientific and technical activities not elsewhere classified.^{[footnote 20]}  Ms Wright referred in cross-examination to its being “a management consultancy company, as well as it has scientific and technical activities, as well as mining, farming … and deals with a range of other things like, for example, wellness, well‑being and health…”.

60. Mr Dick drew Ms Wright’s attention to Exhibit MJD12, which shows a post from Vision Platform’s Instagram page, which reads: “Shopping & retail: Eco Wellness Luxury, Lifestyle&Fashion brand. Sustainable homeware, activewear, footwear, accessories, swimwear, pet wear. Pioneering sustainability.”  (The post is not dated, but includes the copyright notice “2023 Instagram from Meta”.)  The Vision Platform Ltd Instagram post makes no reference to management consultancy or mining.  Ms Wright’s explanation for this was that Vision Platform Ltd’s Instagram page was “concerned only with retail, and other aspects of Vision Platform Limited were carried out in a different way.  For example, we send many emails to the clients that we want to engage with.”

61. I mention these points relating to Vision Platform Limited, partly because Ms Wright gave no coherent explanation for the need for a second company, when just eighteen months earlier she had incorporated Vision Platform Limited with quite a blend of activities, some of which significantly overlap with the stated interests of the Respondent.  Again, as with the Respondent, there is little or no convincing evidence of any actual business activity, and the narrative thread is somewhat elusive and incoherent.

62. Taking stock of the claimed good faith defence, I agree that the timing of the incorporation of the Respondent under a virtually identical name, just seven weeks after the Applicant’s widely reported re‑branding to META PLATFORMS, Inc, appears an incredible coincidence.  None of the evidence filed, including the description from Companies House, refers to metallurgy, mining or any of Ms Wright’s family’s claimed involvement in either industry.  Ms. Wright gave no cogent explanation for why she chose the words ‘Platforms’ and ‘Incorporated’, in that particular order, to go after the word ‘Meta’.^{[footnote 21]}

63. I agree with Mr Dick’s submission that Ms. Wright’s reasons for selecting Meta as a reference to metallurgy is simply implausible, particularly considering there are objectively better choices that are pronounced just as easily, such as “Metal”, and there is no evidence that ‘Meta’ is recognised as an abbreviation of metallurgy, or indeed, of Metal.  If the choice of name were genuinely a tribute to her grandfather, and to “open doors” in the metal industry, then a company name that featured his name, such as “Wright Metals Limited” would have been a more obvious selection and fitting tribute or reference to her family.

64. No evidence has been filed in the course of these proceedings that shows that the Respondent selected the name Meta Platforms Incorporated prior to the 28 October date when the Applicant announced its re‑brand in 2021.  A great deal of the evidence filed to support the Respondent’s claims has been shown to be highly dubious or irrelevant.

65. The Respondent has fallen far short of establishing its claim that the company name was adopted in good faith.  The defence under section 69(4)(d) of the Act fails.

The Respondent’s “without prejudice” offer

66. I turn finally to the letter dated 20 October 2022, from Briffa on behalf of the Respondent to the Applicant’s legal representatives.  I agree with Mr Dick’s submission that this is perhaps the most damning evidence, that discredits most, if not every aspect of the Respondent’s defences.

67. The letter, filed as Exhibit MJD16 as part of the Applicant’s evidence in reply, was marked “Without prejudice – subject to contract”.  The general rule is that any communications that are genuinely aimed at settlement of a legal dispute are “without prejudice” and inadmissible (along with any replies to such letters).

68. The guidance in the Company Names Tribunal Practice Direction 4.3 (“PD 4.3”) notes that a respondent’s motives in registering a challenged company name will become material if the applicant has shown goodwill and if the respondent presents a prima facie justification (defence) under section 69(4) of the Act.  Both are the case in relation to the present proceedings.

69. There is an obvious tension between the ‘without prejudice’ rule and the fact that the best evidence that a company name registration is opportunistic may be the correspondence between the parties.  PD 4.3.7 explains that in considering whether material is “without prejudice”, the adjudicator will take a view as to whether it relates to a genuine attempt to reach an agreement.

70. Briffa objected to the admission of its 20 October 2022 letter, marked Without Prejudice, but the Tribunal gave its preliminary view to admit the Exhibit MJD16.  In reaching that view, the Tribunal accepted the submissions set out by Mr Dick when filing the Applicant’s evidence in reply.  Given the amount of money requested as a “goodwill gesture” in the Respondent’s offer, the Tribunal accepted the Applicant’s submission that it could not be considered a genuine offer or negotiation and instead pointed toward a conclusion that the company name registration was opportunistic and abusive in nature.  The objection raised by Briffa was later withdrawn.

71. At the hearing, the Applicant referred to the case of Marks & Spencer v One in a Million,^{[footnote 22]} cited in the Company Names Tribunal Practice Direction.  In that case, a party had acquired the domain name Burgerking.co.uk, and then wrote to Burger King (the well‑known fast food chain) offering to sell the domain name for £25,000.  That offer for sale was not considered to be part of genuine negotiations and was used to show bad faith and opportunistic motives, thereby defeating a number of the defences claimed.

72. Mr Dick argued that the position in the present case is more egregious, since the Respondent’s letter contains numerous improper claims relating to start ‑up costs not substantiated by evidence.  The letter also contained a request for payment of a sum of £100 million as a “goodwill gesture”; the overall figure requested by the Respondent in that letter was £100,205,676, which, as Mr Dick noted is a figure more than 4,000 times higher than the £25,000 figure characterised by the judge in Marks & Spencer v One in a Million as being “exorbitant”.  I agree that to seek over £100 million to change the name of a company that does not yet appear to have any customers must be seen as nothing other than a brazen and opportunistic attempt to extort money from the Applicant.

73. Mr Dick also referred to another well‑known case Glaxo Plc v Glaxowellcome Limited, where the defendant, realising that there was to be a merger of Glaxo plc and Wellcome plc, registered the combined company name and then sought to bargain with those plcs for the release of the name.  Mr Dick submitted this to be on all fours with the present case.  In the Glaxowellcome case, Lightman J held that defendant’s letter was not truly without prejudice, because it was plainly not a bona fide effort to settle the dispute and that “the court will not countenance any such pre‑emptive strike of registering companies with names where others have the goodwill in those names and the registering party demands a price for changing the names”.

74. The Respondent sought to justify the sum of £100 million by saying it was calculated on the basis of its acquiring 10,000 clients, each paying £10,000.  As Mr Dick emphasised, there is no basis or supporting evidence for the Respondent’s claim that it would ever have 10,000 clients, nor details given as to how it would seek to attract or acquire these.  Nor is there any basis or supporting evidence given to support the Respondent’s claims that each client’s engagement would unquestionably be worth £10,000.  The Respondent’s witness statement shows no evidence of any customers or potential customers, nor even any communications with potential customers, still less anything suggesting that 10,000 customers is likely or even possible.  Again, there is no evidence that any customer would pay £10,000 for the Respondent’s services, nor any reasoning provided on how that figure has been reached, nor details of what specific services would be provided for that rather large sum.

75. Mr Dick submitted that “Put bluntly, the £100 million “goodwill gesture” is preposterous and should be sufficient on its own to convince the tribunal that this is nothing more than a bad faith actor attempting to extort money from a well‑known and successful company that has been known to make high‑value corporate acquisitions in the past.”  I find that I agree.

76. The letter of 20 October 2022 is powerful evidence to undermine the good faith defence under section 69(4)(d) of the Act.  While I have already rejected the claimed defences based on section 69(4)(a) and (b)(ii), the content of Exhibit MJD16 would in any event afford the Applicant the protection of Section 69(5) of the Act, which mandates that an objection shall nevertheless be upheld if the applicant establishes that the main purpose of the respondent in registering the name was to obtain money from the applicant.  In my view that was clearly the Respondent’s intention from the outset.

The section 69(4)(e) defence

77. The final defence relied on by the Respondent is that the interests of the Applicant are not adversely affected to any significant extent.  The defence pleading on this point is sparse and none of the evidence or submissions address it.  It is therefore unclear whether the Respondent maintained this defence by the time of the hearing.

78. The onus of proof is on the Respondent to show that it is more probable than not that the interests of the Applicant are not adversely affected to any significant extent, despite the names being similar enough that use in the UK of the contested Company Name would be likely to mislead by suggesting a connection between the parties.  The terms of the defence in the statute are written in the present tense and the matter is to be judged at the date of the filing of the application to the Tribunal for a change of name.^{[footnote 23]}

79. Various factors play into the consideration of this claimed defence, including the distinctiveness of the name relied on, the extent of the reputation and goodwill and the potential overlap of interests between the businesses of the parties.  I note the following points:

(i) The Respondent submitted that a search of the Companies House register showed thousands of company names featuring the word “Meta” and so it is not a term exclusively used by the Applicant.  This does not assist the Respondent in this case.  All the Act requires is that an applicant must have goodwill (a reputation of any description).  The Applicant does not claim exclusive use of or association with the word “Meta” and goodwill does not have to be an exclusive right;

(ii) The name META and META PLATFORMS is very strongly associated with the Applicant, which had a high degree of goodwill and reputation, including in the UK, prior to the Respondent’s date of incorporation, and the date of these proceedings;

(iii) Ms. Wright mentioned that the parties’ services relate to different sectors and that the Applicant’s goods and services are targeted at the general public.  Firstly, it is clear that the Applicant’s services are not directed only to the general public, but also to businesses at large.  Secondly, Ms Wright’s submission is not consistent with the claim in paragraph 3 of the defence which refers to the companies as “competitors”.  That being so, and since they share an almost identical company name, it is difficult to see how there could not be a risk of consumers being misled.  They are likely to assume that the Respondent is the UK subsidiary of the Applicant – that it is the UK limited company equivalent of Meta Platforms, Inc in the US.

(iv) The evidence shows no value in the contested company name (for example, no evidence of actual customers or potential customers, no evidence of communications with actual or potential customers) other than that it is clearly a name that is associated with the well-known Applicant;

(v) A significant adverse effect on interests, referenced in the defence provision under section 69(4)(e), is not confined to potential diversion of trade or confusion; other factors may result in a significant adverse effect.  The Applicant has control neither over the business activity nor over the corporate filings of the Primary Respondent.  In view of the association of the name META PLATFORMS INCORPORATED with the Applicant, and the scale of the Applicant’s business reach, there is a real risk (which is to say a risk that is not fanciful or remote) of injurious association and reputational damage.

80. The Respondent has not shown that the interests of the Applicant are not to any significant extent adversely affected.  The defence based upon 69(4)(e) also fails.

Outcome

81. The application to change the contested Company Name is successful.  In accordance with section 73(1) of the Act, the following order is made:

(a) META PLATFORMS INCORPORATED LTD (Company Registration 13804448) shall change its name within one month of the date of this order to one that is not an offending name i.e. one not incorporating the Applicant’s name or trade marks;

(b) META PLATFORMS INCORPORATED LTD shall:

• take such steps as are within its power to make, or facilitate the making, of that change;

• 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.

82. 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.  If no such change is made within one month of the date of this Order, a new company name will be determined as per section 73(4) of the Act and notice will be given of that change under section 73(5) of the Act.

83. All respondents 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.

Costs

84. Rule 11 of The Company Names Adjudicator Rules 2008 provides that the adjudicator may award to any party by order such costs as he considers reasonable, and direct how and by what parties they are to be paid.  The Company Names Tribunal’s Practice Direction gives further guidance on costs at its paragraph 10 (though the practice direction is expressly declared not to fetter the discretion of the adjudicator).

85. The Practice Direction states that the adjudicator will not normally award the actual costs incurred but will follow a scale of costs, which gives an indication to parties at the outset as to what they are likely to have to pay if they lose.  The scale is intended to provide a contribution to, but not recompense, the successful party.  In the present proceedings, it is the Applicant who has been successful and who is entitled to a costs award.  Mr Dick submitted at the hearing that in view of the very questionable nature of some of Ms. Wright’s sworn testimony, the Applicant would invite the Tribunal to consider awarding costs off the usual scale.

86. The Practice Direction also provides that the adjudicator may award costs off the scale, approaching full compensation, to deal proportionately with wide breaches of rules, delaying tactics or other unreasonable behaviour.

87. It gives a particular example of unreasonable behaviour on the part of an applicant by making an unrealistic application which the respondent has been put to the burden of defending.  This may arise where the respondent has been conducting a legitimate business under the company name, giving it a valid defence under section 69(4) of the Act, which should have been obvious to the applicant if reasonable pre-action enquiries had been made.  It may be appropriate in such circumstances to compensate a respondent for the unreasonable pursuit of the application by the applicant, since the proceedings clearly had no viable prospect of success.

88. The Practice Direction also states that the adjudicator will be willing to consider requests for an award of costs off the scale in favour of the applicant if it is shown that a particular party is persistently causing successful applications to be made to the tribunal.

89. I bear in mind that the above are merely particular examples of where an award of costs off the usual scale may be considered.

90. It is clear that an applicant is not entitled to costs going beyond those indicated in the scale set out at paragraph 10.1.1 of the Practice Direction simply because it has succeeded in showing goodwill based on a name that is misleadingly similar to that of a respondent, and the respondent has failed in substantiating the statutory defences available to it under section 69(4), even where that includes a failure to show that the contested name was adopted in good faith.

91. Moreover, there is no costs provision expressed in connection with the circumstance set out in section 69(5) of the Act – the provision that overrides the defences mentioned in subsection 4(a), (b) or (c), if the applicant shows that the main purpose in registering the name was to obtain money from the applicant.

92. I am not aware that the Respondent has widely breached any of the Company Names Adjudicator Rules or engaged in delaying tactics.  However, I consider that the ability of the Company Names Adjudicator Rules to award off-scale costs against a respondent is not constrained to dealing only with those behaviours; nor do I consider necessary that it be shown that a particular party is a repeat offender, in the sense of persistently causing successful applications to be made to the tribunal.  The adjudicator has discretion to consider a request for off-scale costs where the behaviour of the respondent has been unreasonable.  It is clear that it may be appropriate to compensate a respondent for an applicant’s unreasonable pursuit of an unrealistic application by the applicant, putting the respondent to the burden of defending.  While I recognise that the Company Names Tribunal was established as a mechanism to remove an offending company name by a means less costly than court proceedings, it must be open to the tribunal to consider off-scale costs where a company name registration is shown to have been used as an instrument of fraud.

93. It seems to me that, in principle, an applicant is entitled to seek a greater measure of recompense for having been put to the trouble, time and expense of initiating and pursuing to completion an objection to a company name, where not only should it have been obvious to the respondent that the proceedings clearly had no viable prospect of success, but where there is also strong evidence that the incorporation under the contested name was cynically opportunistic and that the narrative put forward by the respondent is actively dishonest.

94. This is an exceptionally flagrant abuse of the system of registering companies’ names and this Tribunal will consider off-scale costs, reflecting the entirely avoidable expense incurred by the Applicant.

95. The Practice Direction states that any claim for costs approaching full compensation will need to be supported by a bill itemising the actual costs incurred.  To assist in determining an appropriate costs award in this case, the Applicant is invited to provide the Tribunal, within 14 days of this decision, with a short account of the costs it would seek to recover from the Respondent.  An award of costs will then be determined and issued as a supplementary decision.  Whatever sum is given in that costs order will be payable within twenty-one days of the expiry of the appeal period, or within twenty-one days of the final determination of this case if any appeal against this decision is unsuccessful.

96. 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.  There is therefore no reason not to set the appeal period for this substantive decision at this stage.

97. Any notice of appeal must be given within one month of the date of this decision.  Appeal is to the High Court in England and Wales.  The Tribunal must be advised if an appeal is lodged.

Dated 7 December 2023

Matthew Williams
Company Names Adjudicator

1. The Applicant’s legal representatives had written on 18 May 2022 to the Respondent seeking a change of its name. ↩

2. Form CNA1 Statement of Grounds, paragraph 13. ↩

3. Paragraph 15 of the defence statement. ↩

4. Abigail Macklin of the same firm also attended. ↩

5. Section 69(7) of the Act ↩

6. Zurich Insurance Co v Zurich Investments Ltd [2011] RPC 6 ↩

7. Exhibit MJD10 shows Facebook ranked in the top ten Most Valuable Global Brands. ↩

8. Exhibit MJD9, which includes, for instance an article in The Sun. ↩

9. Paragraph 4 of the Witness Statement of Mr Phillips and Exhibit AP2. ↩

10. See for instance, Exhibit AP3 and AP4. ↩

11. Exhibits AP5 and AP6. ↩

12. Witness statement of Austin Phillips at paragraphs 23 to 26, and Exhibits AP11 and AP13. ↩

13. Paragraph 7(x) of this decision. ↩

14. Paragraph 11(a) of Ms Wright’s witness statement. ↩

15. Paragraph 11(f) of Ms Wright’s witness statement. ↩

16. (I note that Exhibit MJD11 is an extract from Companies House, which though undated, shows the correspondence address for the Respondent as Wenlock Road, N1, which is different from the Sutton Way, W10 address which Ms Wright has claimed as the Respondent’s business location.) ↩

17. Paragraphs 6-7 of her witness statement. ↩

18. Ms Wright stated, for example, in her oral evidence “We have mining events, leadership events”, but filed no supporting evidence to corroborate the truth or accuracy of that assertion. ↩

19. It is also noted that a mismatch of this sort arose too in respect of Exhibit DW13, stated to be an entertainment cost for a seminar promoting the Respondent’s business to potential clients 20 June 2022.  Not only was that claimed cost after the relevant date, but the exhibit is no more than a Barclays bank debit for the claimed amount, dated simply “Monday 20 June”.  However, 20 June 2022 was a Tuesday, not a Monday. ↩

20. Companies House website. ↩

21. Ms Wright had stated at paragraph 9 of her witness statement that she registered the name using an agency that provided “a list of available company names” and that “a copy of the relevant documentation” is filed as Exhibit DW1.  However, no list of available company names is provided at that exhibit, which merely shows confirmation of the company registration. ↩

22. Marks & Spencer Plc v One In A Million Ltd and Others [1998] FSR 265, Jonathan Sumption QC (sitting as a deputy judge of the High Court). ↩

23. As noted at H19 of the decision in MB Inspection Ltd v Hi-Rope Ltd BL O-106-10, [2010] R.P.C. 18. ↩