Corporations Act 2006
Within the matter of utility No. 3453 by ACCESS LOGISTICS LIMITED for a change to the corporate title of ACCESS LOGISTICS (UK) LIMITED, an organization integrated below quantity 04308141.
Background and pleadings
1. The corporate title ACCESS LOGISTICS (UK) LIMITED (“the first respondent”) has been registered since 5 August 2003 below quantity 04308141. The corporate was initially integrated on 19 October 2001 below the title ACCESS COURIERS LIMITED, and subsequently modified its title to ACCESS COURIERS & SHIPPING (WORLDWIDE) LIMITED (on 06 December 2001) and ACCESS LOGISTICS (UK) LIMITED (on 05 August 2003).
2. By an utility filed on 23 March 2021, ACCESS LOGISTICS LIMITED (“the applicant”) utilized below Part 69(1) of the Corporations Act 2006 (“the Act”) for the first respondent’s title to be modified.
3. The applicant claims that its firm was arrange in 1999 as a part-time enterprise creating right into a small-size enterprise that presently employs six members of workers. The applicant seems to be counting on ACCESS LOGISTICS LIMITED, i.e. the complete title of the corporate proven within the utility and, as it may be seen from the solutions offered within the CNA1 (which I reproduce under), it says to have goodwill and repute within the discipline of transport:
“Please present particulars of your goodwill or repute – […] We constructed up a secure and good journey report with clientele (and have some nice testimonials) additionally an excellent journey report with longstanding accountants + credit score reference businesses. A carb[…]n (illegible) impartial award granted on the Royal Albert Corridor”
“Please present particulars of the sector of enterprise wherein this title has goodwill or repute – UK plus worldwide sector freight forwarding with each administrators having amassed [illegible] ’75 years transport enterprise expertise between them”.
4. The applicant claims that it objects to the first respondent’s title as a result of in 2016/2017 they had been incorrectly served a County Court docket Judgment (“CCJ”) issued towards the first respondent’s firm and it took the applicant months to resolve this matter. Additional, the CCJ diminished the applicant’s credit score historical past.
5. The applicant additionally famous that the first respondent’s present title was adopted in August 2003 and that the first respondent’s former title was ACCESS COURIER LIMITED, later modified to ACCESS COURIER + SHIPPING (WORLDWIDE LTD) and means that the first respondent revert to one among its earlier names.
6. On 10 June 2021, the first respondent filed a discover of defence and counterstatement wherein it said:
“Entry Logistics (UK) Ltd was not contacted by the applicant by way of e-mail or phone in 2016/2017, and we had been unaware {that a} CCJ was registered towards Entry Logistics Ltd. If we had been contacted in 2016/2017 we’d have helped to resolve the matter and never permit the scenario to get to this stage. The applicant didn’t give us this chance. The CCJ pertains to overdue invoices from Acclaims Dealing with Ltd to Entry Logistics (UK) Ltd, and the debt of £1,161.88 (together with £170.00 court docket price) was paid in full to Lambeth County Court docket on thirteenth April 2016. Acclaim Dealing with Restricted pursued the mistaken firm and legal responsibility lies with them. The Court docket incorrectly enforced the CCJ towards the mistaken firm and subsequently legal responsibility additionally lays with them. The Applicant contacted us for the primary time in 2020 and requested us to launch our area title to them. They quoted ‘With Brexit upon us it’s important that together with our European area, we even have a UK area’. The applicant additionally said that they had been ready to supply us www.accesslogisticsuk.co.uk and www.accesslogisticsuk.com to recompense. We didn’t comply with this as our area title has been registered for over 15 years and totally serves our enterprise. We re-launched our web site in 2017 as we discovered the appear and feel of it was outdated and wished to generate extra curiosity and gross sales. We purchased our area title and launched our web site to showcase the providers our enterprise affords, look skilled and to encourage clients to contact us. In October 2020 we utilized to register our trademark with the Mental Property Workplace, and in April 2021 our emblem and the title Entry Logistics was efficiently registered below quantity UK00003545833 with none opposition throughout the 2-month Opposition Interval. When our firm title was legally modified to Entry Logistics (UK) Ltd we weren’t conscious that Entry Logistics Ltd existed, and registration of our new title came about with none objections from Corporations Home. Any firm formation or change of firm title utility containing an organization title that’s the ‘identical as’ or ‘too related’ to an current title will likely be rejected by Corporations Home on the level of registration. Entry Logistics (UK) Ltd is a official freight forwarding firm and has traded in good religion for the previous 19 years. We concentrate on sea and air freight to Mauritius amongst different locations and strived to construct the corporate and hold good relations with our clients and suppliers.”
7. The first respondent depends upon the next defences:
it’s working below the title;
its title was adopted in good religion;
the pursuits of the applicant are usually not adversely affected to any vital extent.
8. In assist of its defences, the first respondent claims that:
i. Entry Logistics (UK) Ltd has operated as a official freight forwarding firm below this title for the previous 17 years;
ii. the corporate title was legally modified to Entry Logistics (UK) Ltd in 2003, and registration of the brand new title came about with none objections from Corporations Home. On this connection, the first respondent asserts that any firm formation or change of firm title utility containing an organization title that’s the ‘identical as’ or ‘too related’ to an current title would have been rejected by Corporations Home on the level of registration;
iii. Entry Logistics (UK) Ltd has by no means deliberately brought about any issues to the applicant. On the matter of the CCJ, legal responsibility lies with Acclaims Dealing with Restricted (a third-party firm that isn’t concerned in these proceedings) and the Court docket, not the first respondent.
9. On the request of the applicant, David Campbell director of the first respondent, was subsequently joined to the proceedings as co-respondent.
10. Solely the applicant filed proof. The events had been requested in the event that they wished a call to be made following a listening to or from the papers. Neither aspect selected to be heard. Neither occasion is professionally represented. I make this choice having rigorously thought of all of the papers.
The proof
11. The applicant’s proof takes the type of a witness assertion by Mr Kenneth Moss, in his capability as Managing Director of the applicant, along with 38 attachments.
Choice
12. Part 69 of the Corporations Act 2006 states:
“(1) An individual (“the applicant”) could object to an organization’s registered title on the ground-
(a) that it’s the identical as a reputation related to the applicant wherein he has goodwill, or
(b) that it’s sufficiently much like such a reputation that its use in the UK can be prone to mislead by suggesting a connection between the corporate and the applicant.
(2) The objection should be made by utility to an organization names adjudicator (see part 70).
(3) The corporate involved shall be the first respondent to the appliance.
Any of its members or administrators could also be joined as respondents.
(4) If the bottom laid out in subsection (1)(a) or (b) is established, it’s for the respondents to show-
(a) that the title was registered earlier than the graduation of the actions on which the applicant depends to indicate goodwill; or
(b) that the company-
(i) is working below the title, or
(ii) is proposing to take action and has incurred substantial start-up prices in preparation, or
(iii) was previously working below the title and is now dormant; or
(c) that the title was registered within the unusual course of an organization formation enterprise and the corporate is offered on the market to the applicant on the usual phrases of that enterprise; or
(d) that the title was adopted in good religion; or
(e) that the pursuits of the applicant are usually not adversely affected to any vital extent.
If none of these is proven, the objection shall be upheld.
(5) If the details talked about in subsection (4)(a), (b) or (c) are established, the objection shall however be upheld if the applicant reveals that the principle goal of the respondents (or any of them) in registering the title was to acquire cash (or different consideration) from the applicant or forestall him from registering the title.
(6) If the objection isn’t upheld below subsection (4) or (5), it shall be dismissed.
(7) On this part “goodwill” contains repute of any description.”
Goodwill/Fame
13. The applicant should set up that it had, on the related date, goodwill or repute in relation to a reputation that’s the identical, or sufficiently related, to that of the contested firm title suggesting a connection between the corporate and the applicant. The related date for the aim of proving goodwill/repute is the date of the appliance for a change of the contested firm title which, on this case, is 23 March 2021. [footnote 1]
14. The idea of goodwill was defined in Inland Income Commissioners v Muller & Co’s Margarine Ltd [1901] AC 217 at 223:
“What’s goodwill? It’s a factor very simple to explain, very tough to outline. It’s the profit and benefit of the great title, repute and connection of a enterprise. It’s the engaging pressure which brings in customized. It’s the one factor which distinguishes an old-established enterprise from a brand new enterprise at its first begin.”
The applicant’s proof about its enterprise
15. Sections 69(1) and (7) stipulate that the applicant should have goodwill and/or repute within the title related to it. This should be confirmed in proof. The applicant’s proof related to demonstrating its goodwill/repute could be summarised as follows:
Mr Moss states that his firm’s title was first registered on 8 October 1999 and that his firm has been utilizing its registered title since then, though initially it was used on a “a part-time foundation”. The corporate now has six staff and a thriving little enterprise, buying and selling below their membership of the British Worldwide Freight Affiliation (BIFA);
the applicant had no data of the truth that there was one other firm utilizing an analogous title and buying and selling in the identical enterprise sector – specifically transport providers, delivery and forwarding – till they acquired a restriction on suppliers credit score to their firm and found {that a} County Court docket Judgement (CCJ) had been incorrectly issued once more them, which took months to rectify;
Mr Moss states that as a result of the applicant’s firm was registered greater than three years earlier than the contested firm, the first respondent should have identified of the existence of the applicant, and that is prone to be the explanation why they added the phrase ‘UK’ as a part of their title;
the first respondent had a CCJ issued towards them for being extraordinarily gradual to pay their money owed. The CCJ was despatched to the first respondent’s registered deal with, however they ignored it and in some way it was served on the applicant;
makes an attempt had been made to talk and talk with the first respondent however had been all ignored. Mr Moss explains that the explanation why the appliance was made is to keep away from additional confusion to clients, and that many potential new purchasers and suppliers get the businesses confused with each other;
as a result of the first respondent had registered the area title accesslogistics.co.uk, the applicant needed to accept the area title accesslogistics.eu. Though the applicant tried to discover a honest answer, the first respondent was not prepared to barter. The applicant purchased the domains accesslogisticsuk.co.uk and accesslogisticsuk.com and provided them to the first respondent totally free along with a proposal to withdraw a court docket and authorized charges declare looking for to reimburse the applicant for the various months it took to clear its firm title because of the CCJ issued incorrectly towards the applicant. Nonetheless, the first respondent was not inquisitive about mediation;
the applicant has been utilizing its firm title because it was first registered in 1999 initially as a part-time enterprise. Mr Moss states “I can advise that from a part-time enterprise set-up in 1999 till 2018 (see accountants notice: Brian Collins of Brown & Co. Wickford), I’ve created six full time jobs now and the previous few years have seen the applicant’s turnover rise steadily”. The next turnover figures are offered for the years 2018-2021:
2018 – £300k 2019 – £350k 2020 – £404k 2021 – £939k
16. This concludes my abstract of the proof to the extent that I contemplate it obligatory.
Is the first respondent’s firm title the identical as (or sufficiently much like) a reputation related to the applicant wherein the applicant has goodwill?
17. The title relied upon by the applicant is ACCESS LOGISTICS LIMITED or ACCESS LOGISTICS, the first respondent’s title is ACCESS LOGISTICS (UK) LIMITED. ln Zurich Insurance coverage Co v Zurich Investments Ltd [2011] RPC 6 the Tribunal said as follows at 37:
“An enterprise can’t commerce by reference to an organization title below which it isn’t integrated and, below part 66 of the Act, similar firm names can’t be registered. Taking this under consideration, part 69(1)(a) of the Act can be just about redundant if it requires the title upon which the applicant depends to incorporate the designation of the character of the corporate. For the needs of part 69(1)(a), an organization title and the title related to an applicant are the identical if the one distinction that arises is from the designation of the character of the corporate. So, on this case, the presence of the phrase ‘Restricted’ of itself doesn’t forestall a discovering that the names are the identical.”
18. The one distinction between the first respondent’s firm title and the title related to the applicant are the phrases ‘UK’ (offered inside in brackets) and LIMITED (if the applicant depends on ACCESS LOGISTICS solely) which will likely be perceived as indicative of the geographical location and the company standing of the corporate respectively, so these components of the corporate title do not need a bearing upon the comparability of the names. Consequently, the provisions of Part 69(1)(a) are happy because the names are similar. In any occasion, they clearly fulfill the provisions of Part 69(1)(b) as being related (extremely so).
Did the applicant have goodwill within the title ACCESS LOGISTICS or ACCESS LOGISTICS LIMITED by the date of the appliance?
19. The respondents haven’t contested the applicant’s proof.
20. The applicant said that it began utilizing the corporate’s title since its incorporation in 1999 (roughly 20 years earlier than the related date) initially as a part-time enterprise. The enterprise developed over time and, by 2018, it employed six members of workers. There’s a assertion that use has been steady, and though there are not any invoices, there are turnover figures for the four-year interval previous the related date displaying that between 2018 and 2021 the applicant’s annual turnover elevated from £300K to £939K producing practically a complete of £2million.
21. Though there may be not a lot details about the character of the providers offered, Mr Moss says that the providers are offered below their membership of the British Worldwide Freight Affiliation and are within the discipline of transport. Additional, he refers to ‘Cargo Dealing with’ as accurately categorising what the applicant does. By way of use of the title, though there is no such thing as a proof of promotional or advertising materials, there may be proof of outward use of the phrases ACCESS LOGISTICS within the applicant’s e-mail deal with @accesslogistics.eu previous to the related date. Additional, in an e-mail communication between the applicant and the first respondent (despatched from the identical @accesslogistics.eu e-mail deal with) dated 21 December 2020 Mr Moss refers back to the applicant’s director being refused enterprise on a contract already provided from a consumer and credit score from suppliers due to the error occurred with the CCJ – this not directly confirms that the corporate was already buying and selling in 2017. Lastly, there’s a copy of a webpage from the applicant’s web site accesslogistics.eu with a copyright date of 2017.
22. Bearing in mind the size of use, the turnover figures, and the examples of use of the title ACCESS LOGISTSCS inside a enterprise e-mail deal with and on the web site, I’m happy that the proof is ample for me to search out that the applicant had goodwill within the title ACCESS LOGISTSCS within the UK on the related date.
23. In gentle of this discovering, it’s now obligatory that I contemplate the respondents’ defences.
Defences
24. As the bottom laid out in subsection 69(1)(a) is established, the onus switches to the first respondent to determine whether or not it could possibly depend on any of the defences pleaded. The first respondent depends upon the defences recognized at Sections 69(4)(b), (d) and (e) of the Act:
that the corporate is working below the title, or is proposing to take action and has incurred substantial start-up prices in preparation, or was previously working below the title and is now dormant (part 69(4)(b));
that the corporate title was adopted in good religion (part 69(4)(d)); and,
that the pursuits of the applicant are usually not adversely affected to any vital extent (part 69(4)(e))
25. It’s for the first respondent to make good its defences by way of submitting proof. Though the first respondent has not filed proof throughout the proof rounds, I’ll deal with the counterstatement as the first respondent’s proof.
26. The primary defence is that the corporate is working below the title, is proposing to take action and has incurred substantial start-up prices in preparation or was previously working below the title and is now dormant. The related date for this defence is the date on which the appliance to vary the contested firm title was made: 23 March 2021.
27. The first respondent states in its counterstatement that Entry Logistics (UK) Ltd is a official freight forwarding firm, it has traded in good religion for the previous 19 years and specialises in sea and air freight to Mauritius amongst different locations. The applicant additionally states that the enterprise retains good relations with their clients and suppliers.
28. It seems to be frequent floor between the events that the first respondent’s firm is working below the title ACCESS LOGISTSICS. On this connection, each events referred to the first respondent proudly owning the area title accesslogistics.co.uk and to the applicant’s supply to buy that area title in 2020; each events additionally agree that the applicant’s supply was refused and the first respondent states that this was as a result of the area title had been registered for 15 years and “totally serves the enterprise”. The applicant additionally offered proof of the first respondent’s web site because it appeared in 2017 and later in 2021 which corroborates the first respondent’s account that the web site was re-launched in 2017 to generate extra curiosity and gross sales. The applicant went even additional, offering copies of two invoices from different freight corporations which had been meant to be addressed to the first respondent (each dated December 2020) all of which verify that the first respondent was buying and selling below the title previous to the related date.
29. Taking the entire above under consideration, I discover that the defence below Part 69(4)(b) is made out.
30. In view of the above findings, I don’t contemplate it obligatory to contemplate the remaining defences.
31. Though it’s clear that the principle cause for the applicant to make an utility to vary the first respondent’s title is to keep away from additional confusion between the businesses – which regrettably is inevitable when two corporations use similar or practically similar names in the identical enterprise sector as on this case – the appliance has failed right here as a result of it’s clear that the first respondent is working below the title. On this connection, you will need to notice that the aim of the laws contained within the Corporations Act 2006 is to forestall the opportunistic registration of firm names, not probability of confusion between corporations’ names.
End result
32. The appliance has failed.
Prices
33. The Tribunal awards prices from the revealed scale at paragraph 10 of the Tribunal’s Apply Route. That is supposed to supply a contribution to prices, however to not recompense the profitable occasion. It’s the respondents who’ve been profitable in these proceedings and who’re entitled to a contribution in direction of their prices. Though the applicant has filed proof, the respondents have filed no proof or submissions in reply, so I’ll award solely £50 for contemplating the applicant’s proof. The award breakdown is as follows:
Contemplating the Type CNA1 and submitting the Type CNA2: £400
Price for submitting the Type CNA2: £150
Contemplating the applicant’s proof: £50
Whole £600
34. ACCESS LOGISTICS LIMITED is ordered to pay ACCESS LOGISTICS (UK) LIMITED the sum of £600. This sum is to be paid inside twenty-one days of the expiry of the interval allowed for attraction or, if there may be an attraction, inside twenty-one days of the conclusion of the attraction proceedings (topic to any order of the appellant tribunal).
35. Below part 74(1) of the Act, an attraction can solely be made in relation to the choice to uphold the appliance; there is no such thing as a proper of attraction in relation to prices. Any discover of attraction should be given inside one month of the date of this choice. Attraction is to the Excessive Court docket in England Wales and Northern Eire and to the Court docket of Session in Scotland. The Tribunal should be suggested if an attraction is lodged.
Dated third March 2023
Teresa Perks
Firm Names Adjudicator