Marchwood Yacht Club v Marchwood Yacht Club Limted
| Case Outcome | Applicant successful |
| Respondent | Marchwood Yacht Club Limted |
| Date | 06 June 2019 |
| Administrative Decision Number | 09934035,O/319/19 |
| Court | Company Names Tribunal (EW) |
| Registration Number | 09934035 |
In the matter of application No. 1816 by Marchwood Yacht Club
For a change of the company name of registration No 9934035
Background, Claims and Defences1. MARCHWOOD YACHT CLUB LIMITED (hereafter ‘the respondent’) was incorporated on 4 January 2016.
2. On 7 August 2018, MARCHWOOD YACHT CLUB (an unincorporated association) (hereafter ‘the applicant’) applied for an Order under section 69 of the Companies Act 2006 (‘the Act’) for the company name MARCHWOOD YACHT CLUB LIMITED to be changed.
3. 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 respondents to show
(a) that the name was registered before the commencement of the activities on which the applicant relies to show 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 these 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.”
4. The applicant requested that the primary respondent’s director, Mr Philip Tucker, be joined to the proceedings under the provisions of section 69(3) of the Act. Mr Tucker was given notice of this request and provided with an opportunity to comment or to object. No response was received from Mr Tucker and he was joined to the proceedings as a co-respondent on 28 March 2018.
5. The applicant claims that the name associated with it is Marchwood Yacht Club.
6. In its CNA1 it submits that the applicant was formed in 1963 as an unincorporated association operating as a not for profit organisation. It has charitable status. The membership includes beginners and experienced sailors and currently had 320 members. When affiliates and family members are included, there are more than 600 individuals associated with the club. The club is affiliated to the Royal Yacht Association and has a long-standing history and relationship with the local community.
7. The applicant has a clubhouse, galley and dining room which can accommodate 200 people and holds ‘food themed’ nights along with a programme of lectures over the winter months. Mooring is available for boats up to 40 feet in length with a pontoon for deep water berths and a boat park with capacity for 160 boats for winter storage and annual maintenance. The club has its own private slipway for launching and recovering boats and dinghies. The applicant regularly arranges sailing cruises and sailing tuition with Friendly Club Racing taking place on Wednesday evenings and at weekends.
8. The applicant has its own shop selling branded clothing and has hosted its own website (www.marchwoodyc.org.uk) since 2010 [footnote 1].
9. The applicant submits that it has, “considerable goodwill and a strong reputation in its local area, the city and within the wider sailing and boating community”.
10. In addition, the applicant claims that the primary respondent’s company name has caused confusion for suppliers, contractors and customers. The respondent’s registered company name is too similar to the applicant’s club which is located on the same road as the respondent’s registered office? This is a pleading under section 69(1)(b) of the Act. The applicant requests that the Tribunal make an order under section 73 of the Act for the name to be changed to a name which does not offend. [footnote 2]
11. At paragraph 3 of the attachment to the application for a change of company name the applicant submits:
“Contact with Philip Tucker: [The applicant] has not had any contact with Mr Tucker. The Secretary has attempted to make contact with Mr Tucker at his premises but no-one was at home. Some time ago a member of the club wrote to him at 10 Maritime Avenue on the Club’s behalf, concerning the use of the Club’s name but there was no response. A copy of this letter is attached at page 5.”
12. The applicant filed evidence in the form of two witness statements. The first is David Robert Rouse, a member of the applicant since 1991 and its current Honorary Secretary. Paragraphs 24 and 25 of Mr David Rouse’s witness statement submit that he called twice at the primary respondent’s Maritime Avenue address, once on a Sunday lunchtime and a second time, on the way to a meeting at the applicant’s club on a Monday. There was no answer on either occasion. He further submits that the applicant’s solicitor wrote to Mr Tucker on the applicant’s behalf, concerning the use of the applicant’s name but no response was received.
13. The second of the applicant’s witness statements is by Mr Russell Hawkins, (the applicant’s secretary between November 2014 and November 2017). He submits that he became aware of the contested company name registration in January 2016 when a letter from Companies House was posted to the applicant in error. On 25 January 2016 Mr Hawkins visited the respondent’s address which he describes as being ‘about 100 yards away’ from the applicant’s premises. There was no answer.
14. Mr Hawkins concludes his statement as follows:
“9. I live between the yacht club and 10 Maritime Avenue. On more than six occasions while I was the secretary I knocked on the door of 10 Maritime Avenue to speak to the occupant but never has anyone answered.”
15. Further attempts, by third parties, to contact the respondents are referred to in the witness statements provided by the applicant’s past and present secretaries.
16. The respondent filed a counterstatement (form CNA2), which was completed by Mr Philip Tucker. Section 3 of the form specifically asks the respondent to set out any defences upon which it wishes to rely. The respondent indicated that ‘the interests of the applicant are not adversely affected to any significant extent’. A short letter is attached to the form. This is the only submission made by the respondent and we reproduce it in full:
“ 1. Since its incorporation in January 2016 the Company has remained dormant and undertaken no activities of any kind, no letters or emails have been written or sent and there is no web site or other public presence. The only actions taken have been the provision of Statutory Dormant Accounts to HMRC and Companies House and the filing of the Confirmation Statement with Companies House. Only one letter has ever been received and that was in January 2016.
2. I live and work from home at [10 Maritime Avenue] and no one has ever called at my property or tried to make contact with me at my address.
3. I have not used the applicant’s details in any way and refute that there has been ‘passing off’ of any kind.”
17. The claim made by the respondent relates to a potential defence under section 69(4)(e).
18. In addition to the applicant’s evidence filed on 23 November 2018, it filed written submissions dated 20 March 2019. The respondent filed neither. None of the parties requested a hearing and so this decision is taken following careful consideration of the papers filed.
Evidence19. At paragraph 45 of his statement Mr Rouse submits:
“As a consequence of Mr...
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