Kirk Silo (Installations Limited v Mansfield Garage Doors Limited
| Case Outcome | Application successful |
| Respondent | Mansfield Garage Doors Limited |
| Date | 09 January 2020 |
| Registration Number | 07712395 |
| Administrative Decision Number | 10399291,O/012/20 |
| Court | Company Names Tribunal (EW) |
In the matter of application No. 1792 by Kirk Silo (Installations) Limited
For a change of company name of registration No. 10399291
Background, claims and defences1. The company name Mansfield Garage Doors Limited (hereafter “the respondent company”) was originally registered under the name “Look Services Limited” on 28 September 2016 (under number 10399291). On 5 July 2017 (“the relevant date”), the respondent company changed its name to the allegedly offending name, the subject of these proceedings.
2. By application, filed on 11 July 2018, Kirk Silo (Installations) Limited (hereafter “the applicant”) applied for a change of name of this company registration under the provisions of section 69(1) of the Companies Act 2006 (“the Act”).
3. The applicant claims that it has traded for over 30 years as “Mansfield Garage Doors” and “building an enviable reputation within the local area and beyond”. The parties are both based in Mansfield in Nottinghamshire. The applicant’s goodwill and reputation are identified as being in respect of the supply, installation and maintenance of garage doors. The applicant objects to the respondent company’s name because it “wishes to change its name to Mansfield Garage Doors Limited to prevent any future use of the name by local competitors” and it is currently prevented from doing so. It asserts that it made several attempts to request that the respondent company change its name. In February 2018, it agreed, but required the sum of £1800 to do so.
4. The respondent company filed a notice of defence where it:
- admits that the applicant has been trading for many years;
- claims to have properly and legally registered its name;
- claims it operates under the trading name “Look Builders” carrying out general building and construction work but does not specialise in the fitting and supply of garage doors;
- stated that it rejected an offer, from the applicant, to buy the name because it did not cover expenses and start-up costs
5. The respondent company relies upon the following defences:
- that it is operating under the name or that it is proposing to and has incurred substantial start-up costs in preparation;
- that its name was adopted in good faith;
- that the interests of the applicant are not adversely affected to any significant extent
6. Mr Philip Leivers, director of the respondent company, was subsequently joined to the proceedings as co-respondent (we shall refer to Mr Leivers and the respondent company jointly as “the respondents”). Mr Leivers did not object to the request to join him to the proceedings.
7. Both sides filed evidence and we will summarise this to the extent that we believe is necessary. The applicant also filed written submissions. We keep these in mind. The respondents made a request to be heard. On the basis of the respondents’ request, a hearing took place on 7 October 2019 where the applicant was represented by Nicole Bollard of Counsel, instructed by Hopkins Solicitors LLP. Despite requesting to be heard, the respondents did not attend.
Evidence for the applicant8. This takes the form of the witness statements of Susan Irene Kirk, Director of the applicant since 1991. In respect of the claimed goodwill and reputation of the applicant, Ms Kirk states that:
- the applicant has always operated from Mansfield and was incorporated in 1968 [footnote 1];
- originally, the applicant’s main business was the installation of grain storage silos, however, in the 1980s it started undertaking small building projects including installing garage doors [footnote 2];
- by the late 1980s the garage door installation business was growing “at a considerable rate” and from about 1989 the applicant traded as Kirk Silos (Installations) Limited t/a Mansfield Garage Doors [footnote 3];
- the growth in the applicant’s garage door installation business necessitated several moves to larger premises before it moved to its current premises in 2009 [footnote 4];
- the applicant holds records of over 14,000 customers with a further 2,000 held on its original database [footnote 5]. Ms Kirk’s conservative estimate is that the applicant has served at least 25,000 individual contracts for installation or servicing of garage doors and associated equipment [footnote 6];
- from 1989 or shortly after, the applicant changed its bank account name to “Kirk Silo (Installations) Limited t/a Mansfield Garage Doors” in order to be able to send invoices in the trading name and would expect customers to pay it in the name of “Mansfield Garage Doors” [footnote 7]. Five letters/emails from third parties and all addressed “To whom it may concern” have been elicited for the purposes of these proceedings and all attest to the applicant always using their trading name (in some cases, stating this goes back to 1991), and to being widely known in its local area [footnote 8];
- an advertisement feature that appeared (on an unknown date) in the Mansfield Chronical Advertiser promotes the fact that Mansfield Garage Doors has been in business for 40 years [footnote 9];
- the applicant has been a member of Mansfield and Ashfield 2020 Business Network since 2006 and, as a consequence, it is well known in the local business community [footnote 10];
- the applicant has a gross annual turnover in excess of £800,000 and this is solely in respect of installation of garage doors and associated equipment and servicing of the same [footnote 11];
- its installation and service vans together with its premises have, since 1989, always been presented in the livery of Mansfield Garage Doors [footnote 12];
- the applicant has used the website www.mansfieldgaragedoors.co.uk since October 2002 [footnote 13]. The trading name Mansfield Garage Doors appears prominently in various screen prints obtained on 5 December 2018 [footnote 14];
- examples of the applicant’s current letterheads and terms of business are provided showing the name Mansfield Garage Doors in use [footnote 15]. Ms Kirk states that these have been unaltered since 2009 [footnote 16];
9. Ms Kirk submits that this evidence establishes the applicant’s goodwill from at least 1989 and its goodwill and reputation trading as Mansfield Garage Doors [footnote 17].
10. Ms Kirk asserts that the applicant believes the respondent company was deliberately registered and incorporated in the name Mansfield Garage Doors Limited to seek to pass itself off and to rely upon the historical goodwill and reputation developed by the applicant [footnote 18]. Alternatively, she claims that the respondent company’s registration was undertaken to gain other financial advantage [footnote 19]. Ms Kirk refers to a telephone call between the applicant’s accountant and the respondent company’s accountant when the latter noted that an offer could simply be made to purchase the registered name [footnote 20] . Ms Kirk believes that this telephone call occurred after the applicant had asked its solicitor to write to the respondent company and its sole director, shareholder and controlling mind, Mr Leivers, on or about 15 August 2017 [footnote 21]. Ms Kirk states that “[a]ny delay [in commencing proceedings before the Tribunal] was only occasioned by all attempts by the [applicant] to try to resolve the matter without going through any Court or Tribunal process” [footnote 22]. This resulted in the respondent requiring sums of money to transfer the name to the applicant [footnote 23].
11. Ms Kirk states that the respondents appear to trade as a builder and do not appear to trade as suppliers of garage doors [footnote 24].
12. Within the previous 7 days prior to Ms Kirk giving her statement, the applicant received at least two telephone calls requesting dealings with the respondent [footnote 25]. On average, the applicant received two similar telephone calls a week over a 15 month period [footnote 26].
Evidence for the respondents13. This takes the form of a witness statement by Mr Leivers. It consists of a single page and un-numbered paragraphs. Mr Leivers states that he carried out an Internet search for “Mansfield Garage Doors” and he states that this does not clearly indicate that the registered company behind the applicant’s website is Kirk Silo (Installations) Limited t/a Mansfield Garage Doors. He states that a search of all listed pages must be carried out before it is disclosed.
14. A further Internet search for “Mansfield Garage Doors Ltd” produces a business named “Garage Doors Mansfield”, a trading name of a company called JB Doors, which has no connection to the applicant.
15. Mr Leivers states that his business operates under the name Look Builders and the name Mansfield Garage Doors Ltd is not prominent “at all” in any of his advertised trading activity. To support this, he provides a letter relating to a planning application in the name of Look Services in relation to a “backlight sign” [footnote 27] and a computerised illustration of the planned sign on the respondent’s premises which does not advertise Mansfield Garage Doors but rather it consists of the words “LOOK DOMESTIC & COMMERCIAL GARAGE AND ENTRANCE DOORS” [footnote 28].
16. Mr Leivers points out that the applicant has traded for over 30 years, but that never in that time has it taken the opportunity to change its name, until now. Its directors are seeking to claim compensation and redress for what Mr Leivers characterises as “their own inadequate actions over the past 30 years, when they should have incorporated the name of Mansfield Garage Doors Ltd”.
17. Mr Leivers states that, at no time, did he seek to make a profit from the company name itself and that it was the applicant who made the initial approach to him to acquire the name. He states that it was only when he refused to accept what he describes as “a derisory offer” that “would not have covered [his] administrative costs” that the matter came before the tribunal.
18. In response to the allegation that the registration of the...
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