Certo Construction Ltd v Certo Construction (London) Ltd
| Case Outcome | Application Failed |
| Respondent | Certo Construction (London) Ltd |
| Registration Number | 11257470 |
| Administrative Decision Number | O/375/20,11257470 |
| Court | Company Names Tribunal (EW) |
| Date | 30 July 2020 |
In the matter of application no. 1780 by Certo Construction Limited for a change to the company name of Certo Construction (London) Limited, company registration 11257470.
1. Company 11257470 (“the primary respondent”) was incorporated on 15 March 2018 with the name CERTO CONSTRUCTION (LONDON) LIMITED. This name has caused Certo Construction Limited (registration no. 11032600) to make an application to this Tribunal, on 19 June 2018, under section 69 of the Companies Act 2006 (“the Act”).
2. 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 would be likely to mislead 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 its members or directors may be joined as respondents.
(4) If the ground specified in subsection 1(a) or (b) is established, it is for the respondent to show –
(a) that the name was registered before the commencement of the activities on which the applicant relies to show that goodwill; or
(b) that the company –
(i) is operating under the name, or
(ii) is proposing to do so and has incurred substantial start-up costs in preparation, or
(iii) was formerly operating under the name and is now dormant; or
(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), (b) 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.”
3. The applicant requested that the primary respondent’s sole director, Mr Victor Stephen Wright, be joined to the proceedings under the provisions of section 69(3) of the Act. Mr Wright was given notice of this request by letter dated 24 September 2018 and provided with an opportunity to comment or object. No response was received from Mr Wright and he was joined to the proceedings as a co-respondent on 5 February 2019.
4. The applicant claims that the name associated with it is Certo Construction Limited. The applicant was incorporated on 26 October 2017. The applicant explains that it operates within the construction industry, particularly the hotel, office and property refurbishment sector. With regard to its goodwill/reputation under the name relied upon, the applicant states:
The company is set up for the purposes of undertaking construction projects in the UK and abroad. There have been numerous negotiations with various prospective clients that had been ongoing whilst Victor Wright was a director of the applicant. These negotiations were progressing favourably for the Applicant until Mr Wright set up a rival company with a view to diverting work away from the applicant and taking advantage of the goodwill that had been developed in the name. Had there been no goodwill then it is unlikely that Mr Wright would have sought to take advantage of the similarity in name. The customers that the applicant was in discussions with sought to take advantage of the similarity in name. the customers that the applicant was in discussions with have all been written to put them on notice of the Mr Wright’s [sic] action. A sample copy is attached.
5. The applicant explains that it objects to the name in issue because Mr Wright, a sole director of the primary respondent, was engaged as a director of the applicant between 26 October 2017 and 22 March 2018, when the applicant discovered the existence of the primary respondent. During that period, Mr Wright was responsible for negotiating contracts on behalf of the applicant. The applicant submits that Mr Wright was attempting to divert custom away from the applicant, but without customers being aware that they were dealing with a different entity. The applicant notes that the names are very similar and claims that Mr Wright is attempting to exploit this for the benefit of the primary respondent.
6. The applicant requests that the Tribunal “transfer ownership of the name to Certo Construction Limited. In the alternative, for Certo Construction (London) Limited to be struck off the register.”
7. The primary respondent filed a notice of defence, signed by Mr Wright. Attached to the original Form CNA2 were a number of documents. These were not filed as evidence in the usual format. However, Mr Wright had signed the Form CNA2 and confirmed that the facts stated within that Notice of defence were true. As a consequence, we have read all of these documents and have borne their contents in mind in reaching a decision. In particular, we note the following documents:
a. An undated Company Profile for the primary respondent which lists construction projects undertaken at four locations in London, which includes both offices and apartments. Although the document is undated, it records the position as of March 2018, stating: “a group of investors who have between them created a wholly paid up share capital investment of £333,333” and goes on to record the “balance sheet status” for March 2018 as £333,333. b. A document setting out a list of four projects completed “to date”. The value of one of these projects has not been disclosed, but the value of the other three are listed as £110,000, £17,500 and £250,000 respectively. The document also lists a number of “projects in the pipeline” as follows:
Due to commence: Value:
October 2018 £30,000
October 2018 £100,000
October 2018 £25,000
November 2018 £250,000
January 2019 £1,400,000
February 2019 £2,000,000
March 2019 £500,000
8. In the Notice of defence, Mr Wright denies that the applicant has any goodwill or reputation. In particular, he submits that at the time of his departure from the business, the applicant had no ongoing projects and had received no tender opportunities or projects in the pipeline. Mr Wright states:
Whereas I had made contact with some of my closest previous clients, design consultants, quantity surveyors and project managers, to advise them that I was working for Certo Construction Ltd on a part time consultancy basis, any opportunities they may have been able to offer would have been offered only because of their relationship and trust in me and would have been offered on the strict understanding of my involvement in the projects.
9. The primary respondent relies upon defences based upon sections 69(4)(b) and (e) of the Act (shown above).
10. Neither the primary respondent nor Mr Wright are represented. The applicant is represented by Birkett Long LLP. Both parties filed evidence. The applicant elected not to file evidence in reply. Neither party requested a hearing and this decision is taken following a careful perusal of the papers.
Evidence Applicant’s Evidence11. The applicant filed evidence in the form of the witness statement of Mr Dennis Cutts dated 14 December 2018, which was accompanied by 1 exhibit. Mr Cutts is the sole director and shareholder of the applicant.
12. Mr Cutts explains that he and Mr Wright decided to work together, having worked together previously for another business. Mr Wright was appointed as a director of the applicant in October 2017. Mr Cutts explains that Mr Wright’s role in the business was to assist in obtaining new contracts.
13. Mr Cutts focuses upon the breakdown of the relationship between himself and Mr Wright, which...
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