Adrian Fife v Highlife Music Publishing Ltd
| Case Outcome | Application Successful |
| Respondent | Highlife Music Publishing Ltd |
| Administrative Decision Number | O/137/20,10661329 |
| Date | 05 March 2020 |
| Court | Company Names Tribunal (EW) |
| Registration Number | 10661329 |
In the matter of application Nos. 1634 and 1676 by Adrian Fife for a change to the company names of Hilife Music Entertainment Ltd and Hilife Music Publishing Ltd, companies incorporated under numbers 10510541 and 10661329
Background and pleadings1. The company names HILIFE MUSIC ENTERTAINMENT LTD and HILIFE MUSIC PUBLISHING LTD (“the primary respondents”) have been registered since incorporation on 5 December 2016 and 9 March 2017 under numbers 10510541 and 10661329, respectively.
2. By applications filed on 7 December 2017 and 30 January 2018, Adrian Fife applied under section 69(1) of the Companies Act 2006 (“the Act”) for the primary respondents’ names to be changed.
3. Mr Fife states that the names HILIFE MUSIC and HILIFE MUSIC GROUP are associated with him. Mr Fife claims that the names are recognised in the music industry for providing record production, sale of pre-recorded music, artist management and merchandise. He states that he has over 150,000 “potential clients” on his social media outlets. Mr Fife claims that HILIFE is not a common name and is an uncommon spelling, usually spelt highlife. He claims that this, together with the identical products and services, will cause the companies to be mistaken for each other.
4. The primary respondents filed notices of defence and counterstatements, disagreeing that ‘hilife’ is an uncommon spelling. They claim that the company names were adopted in good faith. As part of due diligence, the primary respondents (through their accountant) carried out a search at Companies House, revealing that Mr Fife’s company was dormant. Trademark clearance searches were also carried out which did not reveal any right in Mr Fife’s names. It was only after the negative search for the trademark clearance that the primary respondents were registered. They state that this is in keeping with acting in good faith and with reasonable care and honesty.
5. The primary respondents deny that they had any prior knowledge of Mr Fife’s companies before finding it registered as a dormant company in the Companies House search. The primary respondents have never been contacted by any person requesting the services of Hilife Music. They state that such contact would be expected if Mr Fife’s assertion that it had created a substantial client base were true.
6. The primary respondents rely upon two defences: section 69(4(b)(i), that the companies are operating; and section 69(4)(d), that the names were adopted in good faith. The primary respondents state that they have produced singles and LPs for artists such as Quayba, Atongo Zimba, Taiwo and Paapa Yankson “(a Highlife musical legend”). The primary respondents state that they have provided songs and branding for a documentary film to be released by Atlantic Pictures.
7. The primary respondents state that the name was adopted in good faith, for the reasons already stated, but also as far as the choice of names is concerned. The primary respondents state that the names were chosen because there is a connection between the name and a popular genre of music in Ghana, called HILIFE. Ms Augustina Atiemo, the primary respondents’ director, is from Ghana. It is claimed that the word HILIFE also reflects Ms Atiemo’s joy for living: HI meaning ‘hello’, and LIFE (hello to life).
8. The counterstatements list a number of domain names and social media names which are registered to the primary respondents. The names all incorporate “hilife music”. It is claimed that the primary respondents have invested approximately £58,000 into the companies.
9. Ms Atiemo was joined to the proceedings as a co-respondent at Mr Fife’s request, under the provisions of section 69(3) of the Act. It was Ms Atiemo who signed the statements of truth in the two notices of defence and counterstatements. For reasons which are unclear, the two sets of proceedings were not consolidated. Both sides filed evidence which is, to all intents and purposes, the same for both sets of proceedings. Consequently, we will produce a single decision covering both sets of proceedings.
10. The parties were asked if they wanted a decision to be made following a hearing or from the papers. Neither side chose to be heard nor did they elect to file written submissions in lieu of attendance. Mr Fife represents himself. The primary respondents were initially represented by a solicitor in Ghana, but as no UK address for service was supplied, as required by rule 3(5)(a) of the Company Names Adjudicator Rules 2008 (“the Rules”), the primary respondents’ UK registered address was treated by the Tribunal as the address for service, under rule 13(2) of the Rules, meaning that the primary respondents were unrepresented after the point at which they filed their defences and counterstatements. We make this decision having carefully considered all the papers.
Mr Fife’s evidence11. Mr Fife has provided witness statements for each of the proceedings, both dated 30 May 2019. He states that he founded the brand HILIFE MUSIC in 2007 as a recording studio. This developed into a record company, and several departments were created to look after various aspects of the business, resulting in the HILIFE MUSIC GROUP of companies. Services provided included music and audio production, mixing, mastering, remixing, artist shows and promotions, sound design, audio and sound effects for TV, radio and games.
12. Mr Fife states that HILIFE MUSIC was involved in the sound for Lucas Arts films and for Frontier and Atari games. Exhibit AF-001 is a print from a gaming website, gamefaqs.gamespot.com. Mr Fife is credited as “Additional Entertainer and Level Design and Ride SFX”, but there is no mention of HILIFE MUSIC. There is a link to amazon.com to purchase the game (Thrillville), but the prices are in US dollars. This does not assist in showing goodwill or a reputation in the name in the UK, which is the relevant territory. It also dates from 2007, some ten years prior to the relevant dates, which are the dates on which the contested company names were registered.
13. Exhibit AF-002 is a print of a letter dated 15 May 2019 from an individual at the Peterborough YMCA. It is headed “To Whom it May Concern” and says “We write this letter as confirmation that HILIFE MUSIC GROUP has previously worked with the YMCA during 2015/2016 and are currently working with us.” This is hearsay evidence, sought for these proceedings. It carries less weight than, for example, a letter written during past years, because it has been created solely because there is a dispute. Further, it has not been produced as a witness statement which means the truth of it cannot be tested. Exhibit AF-004 also contains a similar hearsay letter, dated 17 May 2019, from ‘Maxim’ of the band The Prodigy.
14. Exhibit AF-003 is described as showing that HILIFE MUSIC has sponsored fashion shows and music awards; for example, presenting an award for best male vocalist at the Leicester Music & Entertainment Awards 2018. This is after the relevant date. Mr Fife states that HILIFE MUSIC has worked with a number of musicians, writers, producers and artists, but does not give further details or dates except in relation to a reggae artist called Starkey Banton. Exhibit AF-004 contains prints from Amazon, Apple Music and Spotify, the latter two showing the availability of a Starkey Banton track, which has a copyright date of 2013 owned by HiLife Music Group. This exhibit also contains a copy of a letter from the Peterborough branch of the YMCA, but this one is dated 9 January 2015. It is addressed to “HILIFE MUSIC GROUP” by an individual from the YMCA and concerns a musician who was in partnership with HILIFE MUSIC GROUP who had become an ambassador for the YMCA.
15. Mr Fife states that HILIFE MUSIC BRAND has achieved well above 270,000 followers and subscribers through social media, website and online outlets “which provides the applicant with a large customer base”. The screenshots filed to support this statement, which comprise Exhibits AF-005 and AF-007, are dated in 2018, which is after the relevant dates. Exhibit AF-008 comprises screenshots from individual’s Twitter accounts showing that they ‘follow’ HILIFE MUSIC’s Twitter account. The majority of these do not show which year they are from or are dated within 2018.
16. Exhibit AF-006 has been filed to support Mr Fife’s statement that HILIFE MUSIC received hundreds of music demos from artists, producers, songwriters and the like. The exhibit comprises a substantial number of email prints from individuals to info@hilifemusicgroup.com. The emails attach audio files or refer to music accessible via a ‘cloud’ or social media platforms, with requests for HILIFE MUSIC to listen to and promote the music. They are all dated in 2015 and 2016, with the majority being from 2015.
17. Mr Fife states at paragraph 19 of his witness statement:
Given the tremendous strides that were made with the name HILIFE MUSIC from the year 2007 onward, by the year 2014 I incorporated the company with the name HILIFE MUSIC so that it could become a corporate vehicle by which the name of the brand which I had developed would continue. I assigned all of the goodwill I had generated prior to that date to HILIFE MUSIC such that it belongs to HILIFE MUSIC. I also confirm that any goodwill I have previously generated in my personal capacity and going forward belongs to HILIFE MUSIC.
18. Mr Fife refers to the respondents’ claim that his company was dormant when the respondents’ names were chosen and the companies incorporated. He states that, between 2014 and 2016, there was a great amount of activity, building and strengthening of his brand name. Mr Fife states, at paragraph 25:
The “dormancy” that the respondent relies on to justify registering the same name in December 2016, was for all intents and purposes a paperwork/procedural dormancy which arose due to non-compliance in terms of submitting late accounts. Hence,...
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