The implementation of Section 69 of the Companies Act 2006 gives a person who has goodwill in a name a statutory right to make application to the Company Names Adjudicator objecting to the same name, or something so similar as to suggest an association between the company and the applicant, being registered as a company name. For these purposes the term “person” includes both natural (living and breathing persons) and “corporate” persons such as a company.

So if an individual, company, partnership or trust owns a trade mark, company name, brand name or an unregistered trading name and someone wants to register a name the same as or very near to the one owned then the owner now has the right to object to the name being registered and apply to the Company Names Adjudicator for a ruling. Should the Adjudicator agree that the objection is justified and should be upheld, an order will be made requiring the company to change its name.

Whilst exercise of this right is not dependent on the name having first been registered as a company or as a trade mark, clearly this would help to demonstrate the goodwill held by the applicant in the name. Otherwise evidence will have to be provided that the name has been used by the applicant over a period of time and is closely identified with them.

The implications of this new statutory right are twofold:

Company Names – it is now important to carry out a thorough review to determine whether the name chosen for the company or one near it is currently in use. This review must now extend beyond checking existing company names and include, as far as possible, searches on registered trade marks and un-registered trading and brand names. In the past is was possible to make slight changes to an existing name by, for example, adding  (UK) to the name of an existing company. So XYZ Limited might not be able to complain about someone setting a company up as XYZ (UK) Limited.

Trade Mark Owners – whether your name or trade mark is registered or not, provided you can demonstrate that you have goodwill in the name, you can now prevent a company being formed with the same or a similar name. This gives an added level of protection for trade mark owners, which is no longer dependent on having a company registered in the same or a similar name.

James Green has extensive experience in UK and foreign company formations, changes of company names and the registration of trade marks in the UK and the EU. If you require any help or further information in connection with this new right of objection or on trade mark matters, company formations or changes of name generally, please send an email to postmaster@jamesgreenandco.co.uk

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