Decision

Decision on Terracalor UK Ltd

Published 20 September 2024

Order under the Companies Act 2006

In the matter of application No. 4898

For a change of company name of registration No. 15034814

Decision

The company name TERRACALOR UK LTD has been registered since 28 July 2023 under number 15034814.

By an application filed on 31 May 2024, CALOR GAS LIMITED applied for a change of name of this registration under the provisions of section 69(1) of the Companies Act 2006 (the Act).

A copy of this application was sent to the primary respondent’s registered office on 27 June 2024, 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” service and also by standard mail. On 27 June 2024, the Tribunal wrote to Bernd Walter Gantert to inform them that the applicant had requested that they be joined to the proceedings. No comments were received from Bernd Walter Gantert in relation to this request. On 15 August 2024, Bernd Walter Gantert was joined as a co-respondent. On 15 August 2024, the parties were advised that no defence had been received to the application and so the adjudicator may treat the application as not being opposed. The parties were granted a period of 14 days to request a hearing in relation to this matter, if they so wished. No request for a hearing was made.

In an email sent to the Tribunal on 22 August 2024, the respondent’s director, Bernd Walter Gantert stated;

“……we think we dont need to do anything. As you can see, our name, TERRACALOR UK LTD, is completely different to that of Calor Gas Limited, or am I wrong. The fact that the word Calor appears is a bit imaginative. We have added UK specifically because our main office is in the USA. The word “Calor” is also present in the Latin language, so it is questionable to protect it as a name anyway. After consultation with our lawyers in the USA, we will regard your letter as irrelevant. If further actions were taken, we were advised to file a claim for damages against them as an authority. But we don’t think it should come to that because the situation is actually very clear”.

The Tribunal responded in an email dated 2 September 2024, as follows:

“…………Thank you for your email. Please note the proceedings brought by the applicant in this case will continue. It is noted the respondent has not defended the application nor has a request to be heard been filed in response to the official letter dated 15 August 2024. A copy of this letter is attached for your reference. Therefore, in accordance with Rule 3(4) the adjudicator may treat the application as not being opposed and may make an order under section 73(1) of the Companies Act 2006 to change the name”.

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

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

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

As the primary respondent has not filed the requisite counterstatement nor requested to be heard within the time allowed, it is treated as not opposing the application. Therefore, in accordance with section 73(1) of the Act I make the following order:

(a) TERRACALOR UK 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) TERRACALOR UK LTD and Bernd Walter Gantert each shall:

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

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

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

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

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

CALOR GAS LIMITED, having been successful, is entitled to a contribution towards its costs. I order TERRACALOR UK LTD and Bernd Walter Gantert, being jointly and severally liable, to pay CALOR GAS LIMITED costs on the following basis:

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

Total: £800

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

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

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

Dated 18 September 2024

Susan Eaves
Company Names Adjudicator

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