Decision

Decision on Project London Construction Limited

Updated 10 April 2024

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Companies Act 2006

In the matter of application No. 4082 by London Projects Ltd for a change to the company name of PROJECT LONDON CONSTRUCTION LIMITED, a company incorporated under number 12823753

Background and pleadings

1. The company name PROJECT LONDON CONSTRUCTION LIMITED (“the primary respondent”) has been registered since 14 December 2021 under company number 12823753. The company was incorporated on 19 August 2020 under the name Project London Construction Limited.  This was changed on 29 July 2021 to Project London Group Limited, and was changed back to the present name on 14 December 2021.  The Companies House website describes the primary respondent’s “Nature of business (SIC)” as “41202 – Construction of domestic buildings.”

2. By an application filed on 11 November 2022, London Projects Ltd (“the applicant”) applied under section 69(1) of the Companies Act 2006 (“the Act”) for the primary respondent’s name to be changed.

3. The applicant states at box 10 of the application form that the name associated with it which caused it to make the application is London Projects Limited.  In the section of the application form where the applicant is required to set out details of its goodwill and reputation “under this name”, it states the following (in summary):

London Projects Limited was established on 29 July 2005.  Since inception, the company has established a well recognised brand name in the super-prime construction sector, which is critical to the award of future contracts.  If Project London Construction Ltd is found to perform poor work, London Projects Limited may be wrongly associated with it, which could affect it’s [sic] business negatively.”

4. The applicant objects to the contested company name as being too similar to its name to be distinguished clearly.  It seeks a change of name to allow clear distinction between the two companies.

5. The primary respondent filed a notice of defence and counterstatement on 17 January 2023.  It denies all the allegations.  The primary respondent relies upon the following defences as set out on the defence and counterstatement form, CNA2:

  • that the company
    • is operating under the name, or
    • is proposing to do so and has incurred substantial start-up costs in preparation, or
    • was formerly operating under the name and is now dormant;
  • that the company name was adopted in good faith.

6. The primary respondent states:

The two businesses have different names and extremely different branding.  We are confident that clients can easily discern the difference between the two companies.  We have certainly never received calls or enquiries from any clients or potential clients who have confused us with London Projects.

Aside from that, we take pride in the quality of our work and have had no issues with our projects or the experiences of our clients.  London Projects are welcome to speak to some of our clients for references if they have concerns.

Finally, we appear to work at different end of the market, London Projects are “super-prime” whereas we are more day-to-day residential homeowners.

Project London Construction Limited was formed in good faith in 2020.  The company has spent significant costs on branding, clothing for site teams, livery for vans etc.

Prior to forming the business, we were not aware of London Projects.  We do not compete in the same market, nor do we have similar logos/branding/way of marketing ourselves.  London Projects sit within the super-prime construction sector as they state on their CNA1.  Our market is much smaller residential homeowners with typical contract values of £100k to £500k.

7. Both parties claim costs.

8. Neither party is professionally represented.  Both parties filed evidence.  The parties were asked if they wanted a decision to be made following a hearing or from the papers.  No hearing was requested and neither party filed written submissions in lieu of  a hearing.  I make this decision having carefully considered all the papers, referring to them where it is relevant and/or necessary.

Legislation

9. Section 69 of the Act states:

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

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

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

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

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

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

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

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

(b) that the company

(i) is operating under the name, or

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

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

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

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

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

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

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

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

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

Goodwill/reputation

10. The applicant must establish that it had, at the relevant date, goodwill or a reputation in relation to a name that is the same as, or sufficiently similar to, the contested company name, suggesting a connection between the company and the applicant.  The relevant date for the purpose of proving goodwill/reputation is the date of the application for a change to the company name, 11 November 2022. [footnote 1] 

11. Section 69(7) of the Act defines goodwill as a “reputation of any description”.  Consequently, in the terms of the Act, goodwill includes, but is not limited to, Lord Macnaghten’s classic definition in Inland Revenue Commissioners v Muller & Co’s Margarine Ltd [1901] AC 217 at 223:

What is goodwill? It is a thing very easy to describe, very difficult to define.  It is the benefit and advantage of the good name, reputation and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start.

12. The primary respondent has not denied that the applicant has goodwill/reputation, nor put it to proof of the same.  Section 69(7) of the Act defines goodwill as a “reputation of any description”.  An applicant’s claim to goodwill may be admitted or denied, or the primary respondent may put the applicant to proof.  It is a requirement under rule 3(5) of the Company Names Adjudicator Rules 2008 that the primary respondent state which allegations are admitted or denied and which allegations it can neither admit nor deny and which it requires the applicant to prove.  Whether an applicant has goodwill or not is a matter which should be addressed in the form CNA2, which is the defence and counterstatement. There are two relevant questions on the form. The first is “state which of the allegations in the statement of grounds you agree with and which you deny”.  The second is “state which of the allegations you are unable to admit or deny and which you require the applicant to prove.”  The primary respondent does not refer to the claim that the applicant has goodwill/reputation nor require proof of such. 

13. There is no detail in the applicant’s evidence about its reputation.  The applicant does not appear to have thought that the issue of reputation/goodwill was in issue, presumably, given the fact that the primary respondent did not deny that there was reputation/goodwill or put the applicant to proof of it. I therefore find that its goodwill/reputation is accepted by the primary respondent.  In any event, whether or not the applicant has reputation or goodwill makes no difference to the outcome for the reasons explained later in this decision.

14.  The applicant’s evidence-in-chief comes from Nicholas Stuttard, its Managing Director. [footnote 2]  Mr Stuttard states that the applicant has been in business since 2005.  He states:

The Respondent’s company name has already caused confusion with our company. Customers and suppliers have mistakenly believed that the respondent is our company. This could damage our reputation and business.

15. Mr Stuttard attaches what he describes as a detailed overview of the comparison of the similarities between the two companies (appendices 1 to 9). He states that the statement by the primary respondent that their client base is more day-to-day residential homeowners is untrue. None of the content of the appendices is dated. They are as follows:

(i) Appendix 1 – Typeface

Applicant:

Primary respondent:

(ii)  Appendix 2 – Website design

Applicant:

Primary respondent:

(iii) Appendix 3 – Uniform/PPE design

Applicant:

Primary respondent:

(iv)  Appendix 4 – Project images

Applicant:

Primary respondent:

(v)  Appendix 5 – LinkedIn profile

Applicant:

Primary respondent:

(vi)  Appendix 6 – Catchment areas/portfolio

Applicant:                                                           Primary respondent:

Kensington                                                         Kensington

Notting Hill                                                          Notting Hill

Belgravia

Knightsbridge

Mayfair

Chelsea                                                                       

(vii)  Appendix 7 – Business subsidiaries

Applicant:                                                           Primary respondent:

In-house joinery business                                   In-house joinery business

In-house aftercare service                                  In-house aftercare service

(viii)  Appendix 8 -  Logo design

Applicant:                                                          

Primary respondent:

(ix)  Appendix 9 -  Client portfolio

Applicant:

Super high-net-worth clients

Primary respondent:

                               

16.  Mr Stuttard states that the above extract in Appendix 9 is from the primary respondent’s Instagram page.

17.   The primary respondent’s evidence comes from Jonathan Mount, its Managing Director. [footnote 3] He states that the primary respondent’s business involves architectural and interior design services for residential projects. Although there had been a construction side to the business, Mr Mount states that recently this had ceased and that the business is no longer a main construction contractor.  Instead, the staff are architectural designers and project managers. The business now tenders to main contractors. It has a sister company which undertakes joinery. Mr Mount states that he has never experienced confusion with the applicant’s business.

18.  Appendix 1 comprises a variety of documents which show the primary respondent has been operating.  It suffices to describe a selection of these:

  • on 18 May 2020, the primary respondent emailed a brochure about its services to a prospective client;
  • on 25 June 2020, the primary respondent sent a follow-up email to a client with a PDF estimate and some information about the floor plan;
  • on 3 December 2020, the primary respondent emailed a client attaching its invoice for completed work;
  • on 28 April 2021, the primary respondent emailed an individual offering them a job as an architect/project manager at Project London;
  • a VAT return from 1 August 2021 to 31 October 2021, detailing that the total value of sales for the three-month period was £448,429.69;
  • a list of subcontractors to the primary respondent from June to July 2022;
  • a tender dated 24 August 2020 for alterations, for £3,255;
  • a quotation for works at a flat in Queen’s Gate, dated 25 August 2020, for £873,227.99;
  • an estimate for works to Porchester Square Mews, W2, dated 12 February 2021, at £235,000;
  • a draft planning application for a mansard roof extension to be built during 2021 at an address in SW11;
  • invoices from various dates in 2020, 2021 and 2022, each for thousands of pounds;
  • a service level agreement from the primary respondent’s accountants for 2021 to 2022;
  • Instagram posts from 2020 and 2021.

19. The applicant’s evidence-in-reply comes from Michael Rixson, who is the applicant’s Construction Director.  He states that the parties’ names have been confused by the applicant’s clients and customers, although he gives no specific details. Mr Rixson says:

“ VI.  We feel that the evidence submitted by the “Respondent”, despite being comprehensive, does not prove that Project London is not aiming to compare itself with London Projects, a well-established business, in look and feel of its visual presentation to prospective clients.

VII.  We also believe that Project London’s name is an act of passing off under the common law, as it is likely to deceive or confuse the public into thinking that there is a connection or association between them and us.

VIII.  We therefore seek an injunction to restrain Project London from using their name or any other name that is confusingly similar to ours.”

The names

20.  The parties’ names are London Projects Limited (the applicant) and Project London Construction Ltd (the primary respondent).  Limited/Ltd merely indicates the corporate status of the company and so this element of the contested company name does not have a bearing upon the comparison of the names. [footnote 4]] Construction describes the primary respondent’s area of trade and is not a distinctive part of the contested name.  In the applicant’s name, Project is plural rather than the singular form which appears in the contested name; other than that, the two words London and Project(s) are simply inverted in each name.  The provisions of section 69(1)(b) are satisfied: the names are sufficiently similar that the use in the United Kingdom of the contested company name would be likely to mislead by suggesting a connection between the company and the applicant.  That being the case, the onus switches to the primary respondent to establish at least one of its pleaded defences. 

Defences

21.  The first defence relied upon is section 69(4)(b) that the company is operating under the name, or is proposing to do so and has incurred substantial start-up costs in preparation, or was formerly operating under the name and is now dormant.  Of the three sub-categories in section 69(4)(b), the pleadings and evidence of both parties are focussed on section 69(4)(b)(i): that the company is operating under the name.  The respondent’s evidence shows that it was operating before the application to change its name was made.  The applicant’s pleadings and its own evidence, in which it complains of confusion occurring on account of the parties’ similar names, means that the applicant knew that the primary respondent was operating.  Mr Rixson makes specific reference to passing off taking place.  That indicates the primary respondent is trading, which means that it is operating.  I find that the primary respondent was operating under the contested name at the date on which the application was made to this tribunal, at the date on which the counterstatement was filed, and at least until the primary respondent filed its evidence. [footnote 5] This means that, subject to the applicability of the exceptions set out in section 69(5), the primary respondent has a defence under section 69(4)(b)(i) of the Act.

22.  The applicant has not countered the respondent’s defence by any indication that under section 69(5) that the company name registration was made for the purposes set out in that section: to obtain money (or other consideration) or that the main purpose of the respondent in registering the name was to prevent the applicant from registering the name.  Section 69 of the Act is intended to provide redress against opportunistic company name registrations, or in simpler language, company name squatting, i.e. holding a company name in order to extract consideration from a party with a trading interest in that name or to prevent registration.  It was not intended to replace, or provide an alternative to, passing-off or trade mark infringement proceedings. 

23.  As the applicant itself alleges that the primary respondent has been trading, and it is clear in any event from the evidence that it has been trading and therefore operating, and as section 69(5) of the Act has no part to play in these proceedings, the application fails.  For the record, the tribunal and the adjudicators have no jurisdiction or power to award injunctions.

24.  The primary respondent also relies upon defence based upon section 69(4)(d) of the Act. However, as the primary respondent has already succeeded in its defence based upon section 69(4)(b)(i) of the Act, and clearly so, there is no need for me to decide the alternative ground of defence.  In the interests of procedural economy, I decline to do so.

Outcome

25.  The defence based upon section 69(4)(b)(i) of the Act has succeeded and the application fails accordingly.

Costs

26.  Section 71 of the Act states:

Procedural rules

(1) The Secretary of State may make rules about proceedings before a company names adjudicator.

(2) The rules may, in particular, make provision—

(a) […]

(k) requiring one party to bear the costs (in Scotland, expenses) of another and as to the taxing (or settling) the amount of such costs (or expenses.

           (3) […]

           (4) […]

27.  Rule 11 of the Rules states:

“11. The adjudicator may, at any stage in any proceedings before him under the Act, award to any party by order such costs (in Scotland, expenses) as he considers reasonable, and direct how and by what parties they are to be paid.”

28.  The primary respondent has been successful.  The Tribunal awards costs from the published scale at paragraph 10 of the Tribunal’s Practice Direction. [footnote 6]  This is intended to provide a contribution, but not recompense, to the successful party (the official fees for forms CNA2 and CNA3 are fully re-imbursed).  Using the scale, and bearing in mind that the primary respondent is not professionally represented, I make the following award in favour of the primary respondent:

Fee for filing the Form CNA1 £150

Preparing the application and considering the counterstatement £150

Preparing evidence and considering the applicant’s evidence £500

Fee for form CNA3 (filing evidence)                             £150  

Total £950

29.  I therefore order London Projects Ltd to pay Project London Construction Limited the sum of £950 within 21 days of the end of the period allowed for appeal or, if there is an appeal, within 21 days of the final conclusion of these proceedings (subject to any order of the appellate tribunal).  Under section 74(1) of the Act, an appeal can only be made in relation to the decision to dismiss the application; there is no right of appeal in relation to costs.

Appeal

30.  Any notice of appeal must be given within one month of the date of this decision. Appeal is to the High Court in England & Wales and Northern Ireland, and to the Court of Session in Scotland. The Tribunal must be advised if an appeal is lodged so that implementation of the order is suspended.

Dated 19 February 2024

Judi Pike
  Company Names Adjudicator

  1. Botanica Agriculture and Extraction Limited v Botanica Limited [2022] EWHC 2957 (Ch) and MB Inspection Ltd v Hi-Rope Ltd [2010] RPC 18. ↩

  2. Witness statement dated 2 May 2023 and exhibits. ↩

  3. Witness statement dated 28 June 2023 and exhibits. ↩

  4. See the decision of the adjudicators in MB Inspection Limited v Hi-Rope Limited, [2010] RPC 18 ↩

  5. The relevant date for the operating defence is the date on which the counterstatement was filed (Certo Construction Limited v Certo Construction (London) Limited, BL O/375/20).  In this case, the company was operating prior to that and at the date of the counterstatement. ↩

  6. Company Names Tribunal: practice direction - GOV.UK (www.gov.uk) ↩

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