Decision

Decision on Vent-Tech Ltd

Published 31 July 2024

Companies Act 2006

In the matter of application No. 4068 by Vent-Tech Ltd for a change to the company name of VENTEC NW LTD, a company incorporated under number 13439161

Background and pleadings

1. Ventec NW LTD (“the Primary Respondent”) was incorporated on 4 June 2021 under company number 13439161.  The Companies House register describes the Primary Respondent’s “Nature of business (SIC)” as “43290 – Other construction installation.”

2. By an application on a Form CNA1 filed on 31 October 2022, Vent-Tech Ltd (“the Applicant”) applied under section 69(1) of the Companies Act 2006 (“the Act”) for the Primary Respondent’s name to be changed. ^{[footnote 1]}

3. The Applicant states that the name associated with it which caused it to make the application is its company name “Vent-Tech Ltd” and that the field of business in which this name has goodwill or reputation is “Local Exhaust Ventilation (LEV) and industrial ventilation systems and environment control.”

4. The Applicant’s CNA1, signed under a statement of truth, gives details of its claimed goodwill and reputation under the name:

i. Adrian Sims (who is a director of the Applicant) founded Vent-Tech Ltd in 2001 and has built the business to be a leading name in the industrial ventilation industry, in particular Local Exhaust Ventilation (LEV) industry.

I note that the register of company names maintained by Companies House shows that Vent-Tech Ltd (Company Number 4714321) was incorporated under that name on 27 March 2003 and that the nature of its business (SIC) is given as “33200 - Installation of industrial machinery and equipment”. ^{[footnote 2]}

ii. Mr Sims claims that the Applicant is recognised around the world for the design, installation, commissioning and testing of industrial ventilation systems, and works with institutes such as the British Occupation Hygiene Society, Health and Safety Executive, Solids Handling and Particulates Association, Building Engineering Services Association, Institute of Local Exhaust Ventilation Engineers, Chartered Institute of Building Services Engineers and the Society of Operations Engineers.

iii. He states that since 2015 the Applicant has also been involved in teaching its competitors and end users on the principles of testing and designing of systems.

iv. He states that the Applicant’s multi-award-winning team regularly presents keynote speeches around the world for national organisations, and that the Applicant has “a high presence on the internet (via LinkedIn, Google etc), built over many years of generating and posting detailed content for interested users.”

5. The Applicant states its objection to the Primary Respondent’s registered company name as follows: “the name (apart from spelling) is very familiar [sic] and could prove to be confusing. The use of a regional locator (i.e. NW) suggests they are an off-shoot office of a larger organisation.  This coupled with their logo being VERY similar to ours could prove misleading to potential customers.”

6. The Applicant also states in its Form CNA1 that the contested name came to its attention when the Primary Respondent approached the Applicant requesting to attend one of the Applicant’s training courses on how to carry the testing of LEV systems.

Defence / counterstatement

7. The Primary Respondent filed a Form CNA2 in defence of its registered name.  From the content of the filed Form CNA2, I note the following:

i. The Primary Respondent relies only on one of the statutory defences listed in the Form CNA2, namely that the company name was adopted in good faith.

ii. The Primary Respondent disagrees that its “company name could be confusing, as it is spelt differently with different corporate colours and pronunciation.”

iii. It also disagreed that its “Logo could prove misleading” and states that its logo was designed independently and looks very different.

iv. The Primary Respondent states that it is actively targeting works in the North West, where it is based, which is indicated by the NW part of its name.

v. It states that it specialises in laboratory fit out, fume cupboards and fume extract systems; the Applicant specialises in LEV extract, which forms a very small part of the Primary Respondent business and is not its target market.

Representation and papers filed

8. Neither party is professionally represented.  Only the Applicant filed evidence and claimed costs.  The Applicant filed evidence in the correct format on 19 April 2023.

9. The Primary Respondent was given a deadline of 30 July 2023 to file evidence or submissions in support of its company name, but filed none. I note, however, that the electronic case file shows that on 19 April 2023, Phil Scholes, who is Operations Manager at the Primary Respondent sent to the caseworker an email in reply to the Applicant’s re-filed evidence.  Mr Scholes’s email stated that the evidence was “an opinion only” and did not accept that the evidence showed any wrongdoing.  Mr Scholes stated that the Primary Respondent was “currently running a very successful Google ad campaign for Laboratory Fitouts, which is coming to an end in April & we are planning to renew this for a further 6 months.”  The caseworker forwarded his email to the Applicant and reminded Mr Scholes of the need for correspondence to be copied to the other party.

10. 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

11. 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 or elsewhere would be likely to mislead members of the public in the United Kingdom or elsewhere 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 the following may be joined as respondents-

(a) any member or person who was a member at the time at which the name was registered;

(b) any director or person who was a director at the time at which the name was registered.

(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) …………..

(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), … 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

12. The Applicant must establish that it had, at the relevant date, goodwill or a reputation in relation to its claimed name “Vent-Tech Ltd”.  The “relevant date” for the purpose of proving goodwill/reputation is the date of the application for a change to the company name, 31 October 2022. ^{[footnote 3]}

13. 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.”

14. 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.

15. It is a requirement under rule 3(5) of the Company Names Adjudicator Rules 2008 that a primary respondent states 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.

16. There is no detail in the Applicant’s evidence about its goodwill or reputation, such as corroboration of the awards mentioned in its Form CNA1 or details of turnover or advertising.  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.

17. In any event, I find that the evidence does at least show that the Applicant had operated as a registered company under its claimed name for around 18 years by the time that the Primary Respondent was incorporated, and longer still by the relevant date.  Nor is there any denial of the Applicant’s specific claim that the Primary Respondent approached the Applicant in order to access its training on testing LEV systems.  The Applicant’s profile was evidently sufficient to draw the attention of the Primary Respondent to its expert services, and I find that the Applicant had goodwill associated with its claimed name at the relevant date.

The parties’ names

18. Section 69(1)(b) requires that the names at issue must be sufficiently similar to one another that the use in the United Kingdom of the contested company name would be likely to mislead by suggesting a connection between the primary respondent and the applicant.  The names at issue in the present case are Vent-Tech Ltd (the Applicant) and VENTEC NW LTD (the Primary Respondent).

19. Ltd /Limited merely indicates the corporate status of the company and so this element does not have a bearing upon the comparison of the names. ^{[footnote 4]}

20. The “NW” element of the contested name is said by the Primary Respondent to be a reference to the North West.  I agree that those letters are a standard and common abbreviation for North West, and that the public would understand that to be the significance of those letters.  That element therefore describes the Primary Respondent’s location and is not a distinctive part of the contested name.

21. The Primary Respondent claims in its Form CNA2 that there will be no misleading suggestion of a connection because the parties use different corporate colours.  Even if that is the case, it is irrelevant.  It is of course commonplace for a company to refresh or change its corporate branding style at any point; more importantly, the comparison I must make is between the names themselves.

22. The Primary Respondent also claims in its Form CNA2 that there will be no misleading suggestion of a connection because the names will be pronounced differently.  In my view, the difference in pronunciation as between “vent-tech” and “ventec” is vanishingly slight.

23. I acknowledge, as the Primary Respondent points out in its Form CNA2, that the names are spelled differently: the Applicant’s name features two Ts, a hyphen in the middle and an H at the end.  However, I find that the names are sufficiently similar that use of the contested name would be likely to mislead members of the public in the United Kingdom or elsewhere that the parties are connected.  The allusive concept of ventilation technology is present in both names.  The words “vent-tech” and “ventec” are apt to be imperfectly recalled by the public.  I agree with the Applicant that the presence of the NW in the contested name is likely to misleadingly suggest that the Primary Respondent is an off-shoot office of a larger organisation, both concerned with providing industrial ventilation services.

24. While I do not consider the logo and presentation to be centrally relevant to this decision, I note that the evidence shows the parties’ use of the following:

In my view, use of the contested name in this manner is not likely to lessen the risk of misleading potential customers. 

The Primary Respondent’s defence

25. The provisions of section 69(1)(b) are satisfied.  That being the case, the onus switches to the Primary Respondent to establish its pleaded defence.

26. The only defence pleaded is that of good faith under section 69(4)(d) of the Act, but the Primary Respondent filed no evidence to support its defence.

27. It has not denied that it was aware of the Applicant when it applied to incorporate its company under its chosen name, nor has it given any account of how or why it chose the contested name.

28. The focus of its position appears to be based on its claims that the parties’ focus on different service provision and on different geographical areas.  However, even on the face of matters, these are not relevant considerations since (i) a company can readily change the actual or designated nature of its business, and here the parties already both operate in the field of industrial ventilation services; and (ii) given the nature of the companies’ services there is no obvious reason why they may not be provided across the UK.

29. Moreover, the Applicant filed evidence in the form of a witness statement Adrian Sims that tends to further undermine the specific defensive points raised by Primary Respondent.  For instance, whereas the Primary Respondent claims to target the North West, the Applicant’s evidence includes an extract from the Primary Respondent’s website showing that its featured projects include work for Imperial College London; and whereas the Primary Respondent claims to specialise in laboratory fit out, fume cupboards and fume extract systems and not to target LEV (Local Exhaust Ventilation) extract, the Applicant’s evidence includes an extract from the Primary Respondent’s website showing that supply and installation of LEV is prominent on its website as a service offered together, with duct work installation and testing, servicing and maintenance of industrial ventilation systems.

Outcome

30. The defence based upon section 69(4)(d) of the Act fails and the Applicant succeeds in its request that the Primary Respondent change its company name.

31. Section 73 of the Act provides as follows:

Order requiring name to be changed

(1) If an application under section 69 is upheld, the adjudicator shall make an order-

(a) requiring the respondent company to change its name to one that is not an offending name, and

(b) requiring all the respondents-

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

(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.

(2) 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-

(a) to be the subject of a direction under section 67 (power of Secretary of State to direct change of name), or

(b) to give rise to a further application under section 69.

(3) The order must specify a date by which the respondent company’s name is to be changed and may be enforced-

(a) in England and Wales or Northern Ireland, in the same way as an order of the High Court;

(b) in Scotland, in the same way as a decree of the Court of Session.

(4) If the respondent company’s name is not changed in accordance with the order by the specified date, the adjudicator may determine a new name for the company.

(5) If the adjudicator determines a new name for the respondent company he must give notice of his determination-

(a) to the applicant,

(b) to the respondents, and

(c) to the registrar.

(6) For the purposes of this section a company’s name is changed when the change takes effect in accordance with section 81(1) (on the issue of the new certification of incorporation).

32. In accordance with section 73(1) of the Act, the following order is made:

(a) VENTEC NW LTD (Company Registration 13439161) 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 similar to the Applicant’s name;

(b) VENTEC NW LTD shall:

(i) take such steps as are within its 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.

33. 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.  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.

34. The Primary Respondent has 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

35. Section 71 of the Act states the Secretary of State may make rules about proceedings before a company names adjudicator, and that the rules may, in particular, make provision requiring one party to bear the costs of another and as to the amount of such costs.  Rule 11 of the The Company Names Adjudicator Rules 2008 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.”

36. The Applicant has been successful.  The Tribunal awards costs from the published scale at paragraph 10 of the Tribunal’s Practice Direction. ^{[footnote 5]} Scale costs are intended to provide to the successful party a contribution towards its costs, not to fully recompense, though the official fees for forms CNA1 and CNA3 are fully re-imbursed.  Using the scale, and bearing in mind that the Applicant is not professionally represented, I make the following award in favour of the Applicant:

Fee for filing the Form CNA1	£400
Preparing the application and considering the counterstatement	£150
Preparing evidence	£250
Fee for form CNA3 (filing evidence)	£150
Total	£950

37. I therefore order VENTEC NW LTD to pay Vent-Tech Ltd 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

38. 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: 24 July 2024

Matthew Williams
Company Names Adjudicator

1. In a letter sent by recorded delivery on 21 September 2022, the Applicant had warned the Primary Respondent that it would start legal proceedings. The Applicant’s evidence included a copy of that letter. ↩

2. The Applicant’s evidence exhibited extracts from the Companies House register. ↩

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

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

5. Company Names Tribunal: practice direction ↩