Decision

Decision on Stonelov Rolex Ltd

Updated 13 September 2018

Order under the Companies Act 2006

In the matter of application No. 1705.

For a change of company name of registration No. 10809305.

Decision

The company name STONELOV ROLEX LTD has been registered since 8 June 2017 under number 10809305.

By an application filed on 5 March 2018, Rolex SA applied for a change of name of this registration under the provisions of section 69(1)(b) of the Companies Act 2006 (the Act).

A copy of this application was sent to the primary respondent’s registered office on 26 March 2018, in accordance with rule 3(2) of the Company Names Adjudicator Rules 2008. The copy of the application was sent by Royal Mail special delivery. On the same date, the Tribunal wrote to Mr Joseph Smith to inform him that the applicant had requested that he be joined to the proceedings. No comments were received from Mr Smith in relation to this request. On 27 June 2018, Mr Smith was joined as a co-respondent. On the same date, the parties were advised that no defence had been received to the application and so the adjudicator may treat the application as not being opposed. The parties were granted a period of 14 days to request a hearing in relation to these matters, if they so wished. No request for a hearing was made.

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

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

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

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

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

(b)STONELOV ROLEX LTD and Joseph Smith each shall:

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

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

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

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

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

Costs

Rolex SA has been successful; in its Form CNA1, it indicated it was claiming costs.

Question 7 of the Form CNA1 reads as follows:

Did you warn the company that if it did not change its name that you would start legal proceedings against it? If ‘yes’, when did you warn the company?

In response to that question, the applicant entered “No”. Paragraph 10.4 of the Tribunal’s Practice Direction (“PD”) relates to “undefended applications”. Paragraph 10.4.1 of the PD reads as follows: “If an application is undefended, an award of costs is likely to be made against the respondent, provided a request for costs has been made by the applicant and pre-action enquiries have been made, and provided the application succeeds. It should be noted, however, that the adjudicator will not normally award costs to the applicant if the respondent, whilst not defending the application, nevertheless satisfies the tribunal that it did not receive any notice, or did not receive adequate notice, that the application would be made. The adjudicator will, likewise, normally not award costs if the applicant indicates in box 7 of the application form (CNA1) that it did not contact the company prior to making the application.” (my emphasis)

In light of that guidance, I make no order as to costs.

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

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

Dated 25 July 2018.

Christopher Bowen
Company Names Adjudicator

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