Decision

Decision on Resolve Capital Group Limited

Published 26 June 2023

Companies Act 2006

In the matter of application no. 3761 for a change of company name registration no. 13647221

1. The company name RESOLVE CAPITAL GROUP LIMITED (“the primary respondent”) has been registered since 28 September 2021 under number 13647221. An objection to the name was filed on 27 January 2022 by ReSolve Capital Partners Limited, ReSolve Capital 5 Limited and ReSolve Capital LLP (“the applicants”) under s. 69 of the Companies Act 2006 (“the Act”), which reads:

“69. (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.

2. Mr Awais Ahmad, who is a director of the primary respondent, was joined to the proceedings as a co-respondent in accordance with s. 69(3) of the Act.

3. The applicants claim that they have goodwill associated with the name “Resolve Capital Group”. At question 11 of the application form, they also say:

ReSolve Captial [sic] Partners LLP was incorporated on 6 October 2007 (OC331916); ReSolve Capital Partners Limited was incorporated on 10 June 2018 (11407231) and ReSolve Capital 5 Limited (08762392) incorporated on 5 November 2013. These companies are part of a larger group of “ReSolve” companies which are controlled primarily by Cameron Gunn and Mark Supperstone. There are approximately 12 “ReSolve” companies owned and operated within this group all of which are registerd [sic] at Companies House.

4. At question 12 of the form, the applicants state (reproduced as written):

The ReSolve Capital Partners companies are experienced investors who have been assisting organisations for over 15 years through the currently listed companies, and through additional “ReSolve Capital” companies which had been set up for specific ventures and subsequnelty dssoved (for example- ReSolve Capital 3 Limited and ReSolve Capital 6 Limited. The companies have access to funds of circa £100m to invest, although typical investments range from £1m to £20m in a single transaction.

The companies are well regarded and award winning turnaround specialists.

Included in the wider ReSolve group are professional advisory firm which includes insolvency practitioners dealing with restructuring; corporate finance; corporate simplification; and investment.

The nature of the Applicant’s business is to resolve problems within organisations, hence the name.

5. The reasons for the objection to the company name are as follows (again reproduced as written):

” 1. A search of “Resolve Capital Group” in google brings up nothing in respect of Resolve Capital Group Limited. The first entry (unsponsored) is for the Applicant. The only information for Resolve Capital Group Limited is a link to Companies House. Accordingly, it would be easy to assume that Resolve Capital Group Limited is affiliated or connected to teh Applicant whereas it is not.

2. The website for the ReSolve group of companies is www.resolvegroupuk.com which again could confuse someone into believing that they are dealing with the Applicant. Whilst there is reference to a “Resolve Capital Group, that is clearly an American company.

The address used by the Company and the Director appears to be that of an estate agent – AP Morgan Estate Agents and Companies House refers to a share exchange with AP Morgan Group Limited”.

6. The applicants also state that there is a “great risk” that people would assume that the primary respondent is associated with “the Applicant” and that there is therefore potential for fraud and confusion. The applicants ask for an order requiring the primary respondent to change its name to a name which does not include “Resolve”.

7. The primary respondent filed a notice of defence (form CNA2) denying the applicant’s grounds. It relies on the defences under ss. 69(4)(b), (d) and (e) of the Act. I will return to the detail of the defence shortly.

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. Neither side chose to be heard. The applicants filed written submissions in lieu of a hearing, which I will bear in mind. This decision is taken following a careful reading of all of the papers.

9.Both parties seek an award of costs.

Case management

10. A case management conference (“CMC”) was held before me on 30 November 2022 in relation to the admissibility of the evidence filed by the respondents and an application to file additional evidence. For the reasons given in my letter to the parties of the same date, which I adopt here, I allowed the respondents to regularise their evidence and I admitted the second witness statement of Mr Ahmad.

Evidence

11. The applicants filed evidence consisting of two witness statements, with exhibits, from Mark Supperstone, a Director of the applicant companies. The second of these was filed in reply to the respondents’ evidence. Mr Supperstone gives a very limited account of the applicants’ activities; most of his evidence concerns pre-action correspondence between the parties and the primary respondent’s business/internet presence.

12. The applicants’ form CNA1 also includes a number of attachments. As the form is signed by Cameron Gunn and includes a statement of truth, the documents filed with the form are his evidence. Most of his evidence is duplicated in Mr Supperstone’s evidence; a print of Google search results may have a different date (it is not possible to make it out) but otherwise appears identical.

13. For the respondents, two witness statements were filed by Awais Ahmad, the co-respondent and Director of the primary respondent. The second of these was a response to the applicants’ reply evidence. In consequence of amendments permitted at the CMC, despite originally being dated on 27 September 2022 and 26 October 2022, the admitted witness statements are both dated 1 December 2022. However, as the statement originally filed in October is clearly marked “second statement of Awais Ahmad”, I will refer to this statement as “Ahmad 2” and the other statement as “Ahmad 1”. A number of documents are also attached to the defence, which contains a statement of truth and is signed by Mr Ahmad. These documents are his evidence, which I will take into account. Mr Ahmad’s evidence relates to the primary respondent’s business and the steps taken at the setting up of the company. He also filed evidence concerning the applicants’ website and branding, as well as some third-party use of “resolve” or variations thereof.

14. I have read all of the evidence. I will refer to it as necessary in the course of this decision.

Goodwill

15. S. 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 (“the Rules”) that the primary respondent say which allegations are admitted or denied and which allegations it can neither admit nor deny and which it requires the applicant(s) to prove. Whether an applicant has goodwill or not is a matter which should be addressed in the form CNA2. 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 response given in this case is as follows (reproduced as written, save that references to exhibits have been removed):

“1). The complainant’s firm is Re-Solve or as they present it ReSolve Capital Partners and ours is Resolve Capital Group, fundamentally they are different words altogether. Theirs (Re Solve) means “to find a solution again” ours is Resolve which means “determination”. The idea they would be confused is therefore optimistic at best.

2). The google search claim is false a search made for “resolve capital group” show 3 entries for us, 2 results for American firms and 2 for the complainant’s firm in the first 6 organic entries and the the map listing. The address used by us is that of our head office which also houses our firms namely AP Morgan, Chapter Law and Morgan Financial Services.

3). Our branding is distinctively different in form text and color to the complainants and as such there is very little chance of the two being confused with one another as claimed.

4). According to the complaints website they invest in and provide support to businesses our website clears states “We do not invest in or support external businesses but rather run and grow our homegrown portfolio of group companies”

5). We have incurred great costs in setting up this business including but not limited to Web domain purchase, web development, branding and logo design, bank account opening, appointment of accountants in formation, search engine optimization, social media management amongst other things.

6). We have been known as resolve informally for many years and invested in that identity internally, proof of which is the director even purchased the car registration R350LVE for £1,280 in October 2014 almost 4 years before ReSolve Capital Partners Ltd was even formed.”

16. The second question reads “state which of the allegations you are unable to admit or deny and which you require the applicant to prove”. The primary respondent says in response:

1). In their communications and represenattion [sic] they claim our name creates potential for fraud and we have assumed their idenitty [sic] we would like the complainant to -prove this”.

17. In my estimation, these pleadings do not put in issue the applicants’ claim that they have goodwill in respect of investment services. There is nothing to suggest that the primary respondent requires the applicants to prove either that they have a “reputation of any description” or that any goodwill is owned by the applicants. As the applicants have filed very limited evidence of their own business, they do not appear to have understood the existence of goodwill to be in issue.

18. There is no provision in the Rules which specifies the consequences of a failure to address a specific point in the pleadings. The position in the Civil Procedure Rules (“CPR”) is clear: a defendant must state which allegations they admit, which they deny and which they require the claimant to prove (CPR, 16(1)); and a defendant who fails to deal with an allegation will be taken to have admitted that allegation (CPR, 16.5(5)), unless they set out their own case in relation to the issue to which the allegation is relevant (CPR 16.5(3)) or it was clear to the other party that the point was in issue (Barclays Bank Plc v Boulter and Boulter [1999] UKHL 39). The Company Names Tribunal is not bound by the CPR. However, the provisions on counterstatements in the Rules closely follow the CPR. In light of the requirement for a defendant to state explicitly the matters which are accepted, denied or for which proof is required, there is no good reason why the approach to a counterstatement in the Company Names Tribunal should depart significantly from that under the CPR. In the absence of any mention in the counterstatement at all about the applicants’ goodwill and with nothing that could be construed as a challenge to their claim to own goodwill, I consider that the applicants’ goodwill in respect of business investment services has been accepted. However, the primary respondent does put in issue whether the goodwill attaches to the name “Resolve Capital Group” as claimed.

19. The evidence shows no use at all of “Resolve Capital Group” on the applicants’ part. My finding, for the avoidance of doubt, is that there is no evidence that the applicants have goodwill attached to the name “Resolve Capital Group” and that the application based on that name must fail.

20. Nevertheless, the remaining questions of the form CNA1, reproduced above, raise the prospect that the name which ought to have been relied on is “ReSolve”, “ReSolve Capital” or “ReSolve Capital Partners”. This appears to be recognised by the primary respondent when it says in its counterstatement that “The complainant’s firm is Re-Solve or as they present it Re|Solve Capital Partners” and refers to the applicants’ business as “Re Solve”. I also note that the respondents’ evidence contains no further reference to a claim to use of “Resolve Capital Group” by the applicants but that Mr Ahmad does refer to “Resolve Capital Partners” and points out that “[the] Applicant’s branding is ReSolve, RE|SOLVE shown consistently as 2 words”. ^{[footnote 1]} The point being made in both the CNA2 and the witness statement appears to be that the applicants’ use is not of the plain word “Resolve” and that the differences between “Resolve Capital Group Limited” on the one hand and “Re-Solve”, “ReSolve” or “Re|Solve Capital Partners” on the other are such that the names are not sufficiently similar to engage s. 69(1); none of the respondents’ comments appears to call into question whether the goodwill is attached to, at least, the forms “ReSolve” or “Re|Solve Capital Partners”. In view of the stance taken by the parties, I will, for completeness, consider whether the application would succeed based on the name “ReSolve” or “Re|Solve Capital Partners”. I proceed on the basis that goodwill is accepted in relation to investment services in respect of these names.

Similarity of names

21. The applicants must establish that the company name is sufficiently similar to their own name to suggest a connection between their company and the applicant. I will consider first s. 69(1)(b), starting with the name “ReSolve”. The respondents argue that “ReSolve” means “to find a solution again”, whilst “Resolve” means “determination”. I do not accept this submission. I consider that that “ReSolve” will be understood as a particular presentation of the word “resolve”, with the same meaning as that word, though also referencing the meaning “solve again”, which is evident if the word is broken down. Even if “ReSolve” were understood as “to find a solution again”, the concept of a solution is shared by both names and their meanings would still have a significant overlap. I accept that, in certain circumstances, “resolve” may mean “resolution”. However, the word has many meanings, one of which is “to find the answer or solution to; solve”. ^{[footnote 2]} In the context of a company name, a significant part, if not the majority, of consumers will understand “resolve” as having the latter meaning. In any event, whatever meaning is given to “resolve” in one name is likely to be the same in the other. The differences between the names “ReSolve” and “Resolve Capital Group Limited” are the words “Capital Group Limited”, which have a visual and aural impact, as well as the presentational difference in the first word. Notwithstanding the respondents’ claims that they do not offer investment services, “Capital” will be understood as a reference either to a sum of money or to non-monetary property. It is therefore indicative of a business concerned with capital, whether monetary or non-monetary. “Group” will be understood as meaning that the company is part of a group of companies. “Limited” is simply a designation indicating the company’s incorporated status. The names coincide in the word “Resolve”/ “ReSolve”. It is the only word in the applicants’ name and the only distinctive element of the primary respondent’s name. The different presentation of the words “ReSolve” and “Resolve” would be attributed to an alteration in presentation rather than the companies being different, whilst the additional words “Capital Group Limited” are not sufficiently distinctive to prevent confusion or deception. My view is that these names are sufficiently similar that the primary respondent’s name is likely to mislead.

22. Although the presentation of “Re|Solve Capital Partners” involves a more obvious separation between “Re” and “Solve”, I do not consider that it will prevent the word from being understood as a form of “Resolve”. Conceptually, the meaning will be the same as the word “Resolve” in the primary respondent’s name, though there is a presentational difference. Both names share the word “Capital”. The words “Partners” and “Group Limited” are obviously different both visually and aurally, if of little distinctive significance. The absence of distinctive elements to distinguish between the names and the likelihood that the other elements may be misremembered cause me to conclude that the names are sufficiently similar that the name “Resolve Capital Group Limited” is likely to mislead.

23. I recognise that the respondents argue that investment is not part of their business. The nature of business specified for the primary respondent on the Register is “Activities of other holding companies not elsewhere classified”. First, this could include activities of a holding company in relation to an investment group. Second, it is not usually appropriate to take into account the current activities of the primary respondent, as the indication does not constrain a company to operate only in that area and there is nothing to stop the respondents from expanding their business to the same field as the applicants. The conditions at s. 69(1)(b) are made out.

Defences

24. As the ground specified in s. 69(1)(b) is established, the onus switches to the primary respondent to establish whether it can rely on any of the defences pleaded. I consider these in turn.

The company is operating under the name (s. 69(4)(i)) or is proposing to do so and has incurred substantial start-up costs in preparation (s. 69(4)(b)(ii)), or that it was formerly operating and is now dormant (s. 69(4)(b)(iii))

25. It is not clear from the form CNA2 whether the primary respondent relies on the defence under s. 69(4)(b)(i) or (ii), or both. Reference is made to its branding and website, as well as costs. I will consider both of these defences. There appears to be no reliance on s. 69(4)(b)(iii), nor could there be: the primary respondent’s status is recorded as “Active” on the Companies House database, meaning that the defence under s. 69(4)(b)(iii) is not available.

26. In Certo Construction Limited v Certo Construction (London) Limited, BL O/375/20, the Company Names Adjudicators stated:

“33. We are mindful that the wording of the legislation is not clear as to the provisions of the Act under which this application is brought is to prevent “squatting” i.e. to prevent the registration of a company name by an entity whose main purpose in registering the name is to obtain money (or other consideration) from another party with a reputation under the name, or to prevent that party from registering the name. In particular, the powers set out in sections 69 to 73 of the Act were not intended to provide an alternative remedy to the law of trade marks or the tort of passing off.

34. Following the policy of the Act through to its logical conclusion would suggest that provided a respondent can show that it has traded under the name, (even if that amounted to passing off), that should be sufficient to make out the defence under section 69(4). That remains the case even if the primary respondent started trading after the application in issue was made, provided that trading had commenced, or substantial start-up costs had been incurred, by the time that the primary respondent came to file its Notice of defence. In any event, we will consider the position both at this date and at the earlier date of the application in issue.

27. As referred to in Certo Construction Limited, it is a defence to show that a company has incurred substantial costs in preparing to start trading. It is also a defence that a company was formerly operating under the name and is now dormant. Neither of these possible defences suggests that trading at the date of the application for a change of name is essential. S. 69(1)(b), which requires that the names are similar enough to mislead by suggesting a connection between the company and the applicant, represents a relatively low, prima facie hurdle. Commensurately, it is not necessary to apply a high threshold to the prima facie defence that the company is operating under the name, particularly as an applicant may avail itself of the proviso under s. 69(5) of the Act if any trade after the application is sham. Nor is it necessary to apply a high threshold to the defence that the company is proposing to start operating and has incurred substantial start-up costs in preparation. Accordingly, the relevant date for considering the defences under s. 69(4)(b) is 3 March 2022, the date on which the defence form CNA2 and the counterstatement were filed.

28. Mr Ahmad’s evidence is that the primary respondent is a holding company and that it does not, therefore, directly trade. ^{[footnote 3]} The use in the Act of “operating” rather than “trading” appears to indicate wider scope for the defences under s. 69(4)(b)(i) and (ii). This is consistent with the purpose of the Act, which is to prevent company name “squatting”. In the business world, it is common for companies to be holding or umbrella companies, with the actual trade carried out by their subsidiaries. Notwithstanding the fact that the holding or umbrella companies do not themselves trade, they are still performing a legitimate commercial function in the market. In my view, it is not proper to equate “operating” with “trading” and I find that a holding company may, in principle, avail itself of the defences under s. 69(4)(b)(i) and (ii).

29. The respondents’ evidence is that the domain names resolvecapitalgroup.co.uk and resolvecapitalgroup.com were registered in November 2021. ^{[footnote 4]} Mr Ahmad says that the primary respondent’s email address is “@resolvecapitalgroup.co.uk”. ^{[footnote 5]} Filed with the defence is what appears to be a contemporaneous Google search, which shows that a search for “resolve capital group” returns results for the resolvecapitalgroup.co.uk website. ^{[footnote 6]}

30. A print of the primary respondent’s website, also filed with and apparently contemporaneous with the defence, shows “RESOLVE CAPITAL GROUP”. The branding is consistent with the evidence concerning the website filed elsewhere in the parties’ evidence. It states that “Resolve Capital Group are a specialist company who have been providing professional services in the UK since 2007”. It says that the company specialises in property services but also covers other business sectors and there is reference to “the brands that operate within Resolve Capital Group”. The print includes a statement that “We do not invest in or support external businesses but rather run and grow our homegrown portfolio of group companies”.

31. In addition to this, the applicants have exhibited the “About Us” and contact form pages from resolvecapitalgroup.co.uk. ^{[footnote 7]} Under the heading “Our Brands”, three firms are listed, namely AP Morgan (estate agent and letting agent), Chapter Law (specialist property law firm) and MFS (financial services firm). “RESOLVE CAPITAL GROUP” appears at the top of the page, both in the page content itself and in the print heading. There is also a privacy policy. ^{[footnote 8]} Mr Supperstone says that the privacy policy does not relate to the primary respondent and that “that website was only found after an investigation which led to a twitter account in the name of ‘@resolve_capital’”. This appears to mean that the privacy policy was, in fact, obtained from www.chapterlaw.co.uk, which is the website identified in the first paragraph of the privacy policy. However, the policy references “Resolve Capital Group” throughout and it appears in the heading at the top of each page, the latter of which appears to be provided from web data. All of these web pages have a 2022 copyright date but they appear to have been printed on 4 February 2022 (the date is written 04/02/2022 and printing dates elsewhere in Mr Supperstone’s evidence have UK formatting). This puts them before the relevant date.

32. There are also prints in the applicants’ evidence of the primary respondent’s Twitter account, with a joining date of December 2021 (no followers). Additionally, a print of the primary respondent’s LinkedIn page contains a post, dated three months earlier, about the “updated website”. The page was printed on 23 May 2022. At that date, it had zero followers; no other posts are visible. ^{[footnote 9]} However, the print shows that the LinkedIn account existed in February 2022 and that there was one post, about the new website, from that date.

33. Mr Supperstone also exhibits written resolutions filed at Companies House in respect of the primary respondent, which are dated 1 October 2021 and signed by Mr Ahmad as sole member of the company. ^{[footnote 10]} In that document, it is resolved that the primary respondent will enter into a share exchange agreement with Mr Ahmad “regarding the acquisition by the [primary respondent] of the entire issued share capital of APM Financial Services Limited in exchange for the issue of one ordinary share of £1 each in the [primary respondent]”.

34. The respondents have provided a copy of a bank statement for the primary respondent dated November 2021. ^{[footnote 11]} This shows payments to and from other companies (“AP MORGAN LE LTD”, “AP MORGAN GROUP” and “AP MORGAN HA LTD”). It seems likely that these are companies of which Mr Ahmad is also director, given that both his evidence and the unchallenged evidence of Mr Supperstone is that Mr Ahmad is director of a number of companies with “AP MORGAN” in their name. ^{[footnote 12]} A further bank statement dated after the relevant date includes payments to and from not only “AP MORGAN GROUP” (and others) but from CHAPTER LAW LTD. ^{[footnote 13]}

35. The respondents also rely upon a DVLA form V778 Retention Document for registration number R350 LVE, with an issue date of 18 December 2019. ^{[footnote 14]} Mr Ahmad says that this is evidence that the primary respondent has been “known as resolve informally for many years and invested in that identity internally”. ^{[footnote 15]}

36. The DVLA Retention Document is of no assistance. The ownership of a car registration plate, of itself, reveals nothing about the activities of a company or how it is known. The form says that “This vehicle registration number must be assigned to a vehicle before 17.12.2029”. There is also an option for “certificate renewal”. It therefore appears that as at the issue date in December 2019, the number plate was not in use on any vehicle. Had the number plate subsequently been assigned to a vehicle, one would expect a further certificate/document confirming that assignment. It would also have been possible to provide dated photographs of the number plate affixed to a vehicle, which may have had some weight if it was a branded company vehicle. No such evidence has been provided. The fact that a V778 document can be renewed also means that the number plate may never have been affixed to a vehicle since it was purchased.

37. However, it is clear that, shortly after the primary respondent was incorporated, a resolution was passed for it to acquire shares in another of Mr Ahmad’s companies, which is consistent with its stated use as a holding company. It is also tolerably clear that, by the relevant date, the primary respondent had a website under its own name, which mentions three brands which appear to be the trading companies, along with both Twitter and LinkedIn accounts. The company name had been used in respect of a privacy policy for the Chapter Law website, whilst payments had been made between the primary respondent’s bank account and other “AP MORGAN” companies. Although the precise nature of the transactions is not clear, the date of the statement indicates that they were not effected simply for these proceedings. There appears to have been very little activity on the social media pages by the relevant date but I do not consider that fatal. The remainder of the evidence is weak but, as I indicated earlier, the defence is not a high hurdle. The civil test is on the balance of probabilities and, applying that test, it seems to me likely that the primary respondent was by the relevant date operating as a holding company for other companies in the group owned by Mr Ahmad. The respondents have established a prima facie defence under s. 69(4)(b)(i).

38. The defence under s. 69(4)(b)(i) is dependent on the proviso at s. 69(5), namely that:

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.

39. There is no evidence at all that the respondents have attempted to obtain money or other consideration from the applicants, or that they have tried to prevent the applicants from registering the name. The defence under s. 69(4)(b)(i) is made out.

40. The respondents also claim that substantial costs have been incurred in preparation for trade. A requirement under s. 69(4)(b)(ii) is that the costs are “substantial”. The only documentary evidence of any costs is the invoice for domain name registration, dated 2 November 2021, which totals £17.99 inclusive of VAT. Mr Ahmad’s narrative evidence in respect of the costs incurred is as follows:

Beyond the usual company setup direct costs such as accountancy, formation and legal work etc incurred I have also incurred significant indirect costs by using existing resources from other businesses including but not limited to web design, logo and graphics, legal advice, email hosting and technology and social media. As such the indirect costs cannot be evidence by invoices however the existence of the website, graphics and socials demonstrate that the work has been done. ^{[footnote 16]}

41. I do not consider £17.99 to be a “substantial” cost. For the remaining expenses, Mr Ahmad is, in effect, requesting that the tribunal accept his assessment that the costs were substantial. However, it is for the respondents to show that the costs were substantial. They have not done so. The defence under s. 69(4)(b)(ii) is rejected.

The name was adopted in good faith (s. 69(4)(d))

42. The onus is on the respondents to show that the contested name was adopted in good faith. This is evident from the wording of s. 69(4) of the Act, which reverses the usual persuasive and evidential burdens in civil law cases where good faith will normally be presumed and bad faith must be proven by the person alleging it. Once the respondents establish a prima facie case that the name was adopted in good faith, it is for the applicants to rebut it. The relevant date is the date on which the name was adopted, in this case the date of incorporation, i.e. 28 September 2021.

43. The following principles can be extracted from the judgments of the Privy Council in Barlow Clowes v Eurotrust International Ltd [2005] UKPC 37, and the Court of Appeal in England and Wales in Niru Battery Manufacturing v Milestone Trading Ltd [2003] EWCA Civ 1446:

(i) Good faith is not displayed by certain kinds of sharp practice which fall short of outright dishonesty or by dishonesty itself: Niru Battery at [164].

(ii) There is a combined subjective/objective approach to the honesty of a party’s behaviour. This involves (i) a consideration of what the party knew at the time of a transaction and (ii) how that party’s action would be viewed by applying normally acceptable standards of commercial behaviour: Barlow Clowes at [15] to [18] and [28] to [32].

44. Mr Ahmad’s evidence is that he chose the name “because of his like of the book by JJ Hensley of the same name ‘resolve’ as well as its positive meaning in a business and personal development context”. ^{[footnote 17]} He states that “the respondent” was unaware of the applicants until their letter before action of 14 December 2021. ^{[footnote 18]}

45. There is no evidence about the book said to have inspired Mr Ahmad and the assertion is lacking in detail. One would not normally expect the title of a book, without more, to have such an impact on an individual that they would adopt it as the name of their business. Absent any reason why the book resonated with him or why he felt “resolve” particularly appropriate for the business because of the content of the book, I do not find that explanation adequate to establish good faith.

46. However, the second part of Mr Ahmad’s explanation, that “resolve” has a positive meaning in a business context, is credible. As anyone with experience in trade mark matters will know, it is often the case that those in business choose indicators which are allusive, if not descriptive, of what a given company does. Mr Ahmad does not specify what the “positive meaning” was that he attributed to the word but it is readily apparent that “resolve” might signal a company’s capacity to find solutions to problems or elicit notions of determination to do any number of things (e.g. resolve problems, see projects through to completion). In short, “Resolve” is an unsurprising choice in a company name; the remaining elements of the name are entirely descriptive. It is, in my view, plausible that the choice of “Resolve” is coincidental. I do not think that the evidence that other companies owned by Mr Ahmad include the name “Morgan” shows otherwise. Not all of Mr Ahmad’s other companies include “Morgan” and it is no more indicative of bad faith than it is good faith that the name at issue does not include “Morgan”.

47. In addition, Mr Ahmad’s evidence is that “the [primary] respondent” was unaware of the applicants at the time of the incorporation. That evidence has not been challenged by the applicants. In some cases, a company may be so famous that a respondent must be taken to have been aware of it but that is not, on the evidence before me, the case here. Mr Supperstone says that the “ReSolve” name has been used since 2008. ^{[footnote 19]} He also reports that the applicants have won six awards since 2013. ^{[footnote 20]} The series of awards may mean that they are known to some in the corporate restructuring field but there is nothing to explain what the awards are or their industry significance. Beyond that, there is very little evidence of the applicants’ reputation or activities and no evidence of turnover or advertising. In evidence filed with the form CNA1 is a Google search result for “resolve capital group”. This includes some links to the applicants’ website and a LinkedIn page, as well as a larger box which shows a star rating of 4.2 from 5 reviews. Five Google reviews is a long way from persuasive. The evidence is insufficient to establish that the respondents would have been aware of the applicants.

48. I also bear in mind that resolutions were made for an asset purchase by the primary respondent shortly after its incorporation and that a bank account was operational by November 2021. Further, the respondents arranged the purchase of two domain names in November 2021. All of this occurred before any contact from the applicants. The evidence is thin but it all points to registration of the name being genuine. There is also evidence from after the relevant date, in the form of social media accounts and a website, which is consistent with the creation of a company identity. I recognise that there would be little or no cost to the registration of social media accounts but the creation of a website will have taken some time and expense. Bearing all of the above in mind, I find that the name was adopted in good faith and the defence under s. 69(4)(d) is made out.

The interests of the applicants are not adversely affected to any significant extent (s. 69(4)(e))

49. The respondents have succeeded in two of the pleaded defences. There is no need to consider whether there is a third basis for rejecting the application.

Outcome

50. The application is dismissed.

Costs

51. As the respondents have been successful, they would ordinarily be entitled to a contribution towards their costs, based upon the scale of costs published in paragraph 10.1 of the Practice Direction. However, rule 11 of the Rules confers a wide discretion on adjudicators to award costs as they see fit. The applicants submit that they ought to be awarded their actual costs regardless of the outcome because, they say, the behaviour of the respondents has directly increased their costs. In particular, they say that the piecemeal way in which the respondents’ evidence was filed meant that the applicants wasted time responding to the initial evidence, which was then supplemented with additional evidence to which a further response was required. The applicants also point to the failure of the respondents to address various issues with their evidence, such as missing exhibits, which has meant that the applicants have had to write to the tribunal several times to chase these documents.

52. These submissions are not entirely without merit. The supplementary evidence filed by the respondents could plainly have been filed earlier. However, the evidence was limited and material, and the applicants accepted that they would not need to respond in evidence. The respondents were under no obligation to file evidence with their form CNA2 and cannot be criticised for filing evidence in reply to the applicants’ evidence in chief in the period allowed for that purpose. As to the manner in which the evidence was filed, the respondents’ approach has not been satisfactory. For example, the applicants had to ask repeatedly that two exhibits be copied to them and deadlines for filing amended evidence were missed, causing the applicants to write to the tribunal to ascertain if the evidence had been filed.

53. The applicants also appear to be seeking the costs associated with pre-action correspondence sent by their solicitors. These are costs incurred outside the proceedings and, consequently, are outside my discretion.

54. Bearing all of the above in mind, I do not consider the respondents’ behaviour to be so unreasonable that the applicants ought to be awarded their actual costs despite the fact that the application has failed. However, I consider it appropriate to reduce the award I would have made against the applicants and award the respondents no costs in respect of their evidence except the official fee for the first CNA3. The filing of the second CNA3 was due the respondents’ failure to file all of their evidence at the appropriate time and I make no award for this form. I award costs to the respondents as follows:

Preparing a statement and considering the applicant’s statement: £200
Official fees (CNA2, CNA3 x 1): £300

Total: £500

55. I order ReSolve Capital Partners Limited, ReSolve Capital 5 Limited and ReSolve Capital LLP jointly and severally to pay Resolve Capital Group Limited the sum of £500 within 21 days of the expiry of the appeal period, or within 21 days of the final determination of this case if any appeal against this decision is unsuccessful.

56.Under s. 74(1) of the Act, an appeal can only be made in relation to the decision to dismiss the applications; there is no right of appeal in relation to costs. The company names adjudicator must be advised if an appeal is lodged.

Dated 16 June 2023

Heather Harrison
Company Names Adjudicator

1. Ahmad 1, §17. ↩

2. See, for example, definition 6 in the Collins English Dictionary, visible at https://www.collinsdictionary.com/dictionary/english/resolve [accessed 7 June 2023]. ↩

3. Ahmad 1, §2; Ahmad 2, §13. ↩

4. Appendix W10b to Ahmad 2. ↩

5. Ahmad 1, §11. ↩

6. Evidence filed with the CNA2. ↩

7. Exhibit to Supperstone 1, pp. 26-29. ↩

8. Exhibit to Supperstone 1, pp. 30-33. ↩

9. Exhibit to Supperstone 1, pp. 38-45. ↩

10. Exhibit to Supperstone 1, pp. 24-25. ↩

11. Appendix W13 to Ahmad 2. ↩

12. See, for example, Appendix W9 to Ahmad 1 and Supperstone 2, §§10, 20. ↩

13. Appendix W1 to Ahmad 1. ↩

14. Appendix W2 to Ahmad 1. ↩

15. Counterstatement. ↩

16. Ahmad 2, §11. ↩

17. Ahmad 1, §7. ↩

18. Ahmad 1, §8. ↩

19. Supperstone 1, §5. ↩

20. Supperstone 1, §7. ↩