It’s all in the name!
The High Court has confirmed the approach that will be taken when considering a challenge made by a third party to a company name.
In AXA Wholesale Trading v AXA  EWHC 1339 (Ch) a company registered as "Axa Wholesale Trading Limited" (“AWT”) challenged a decision by the Company Names Adjudicator that its name was too similar to that of the French insurance and financial services group AXA.
Under section 69 of the Companies Act 2006, a person can object to a UK company's registered name if (among other things) it is so similar to a name in which the applicant has goodwill that its use in the United Kingdom would likely suggest a misleading connection between the company and the applicant. AWT was incorporated in October 2020. In November of the same tear AXA applied under s69(1)(b) to the Companies Names Tribunal for AWT’s name to be changed on grounds that it was sufficiently similar to AXA and that use of the name in the UK would likely mislead given AXA had worldwide insurance and financial services businesses in the UK.
The tribunal agreed with AXA’s objection and made an order requiring AWT to change its name within one month. AWT appealed to the High Court.
In this case the court confirmed that, when assessing the legal and factual matters relating to a challenge to a company name (specifically, an appeal against a decision that a name must be changed), the court will adopt the same approach as it would when assessing a challenge to a trade mark registration decision by the UK Intellectual Property Office. This was in large part because the nature of the exercise before the court is similar to that done by UK trade mark examiners. In adopting this approach the High Court dismissed AWT’s appeal noting that unless there was an error of law the court would be reluctant to interfere unless a distinct and material error of principle was shown.
The court held that defences of registration in good faith under section 69(4)(d) of the CA 2006 and lack of significant adverse effect on AXA’s interests under section 69(4)(e) of the CA 2006 were not made out.
There are a couple of options available in circumstances where a company seeks to register or use a similar company name to one already in use. These are:
- A claim for passing off i.e. that the new name is confusingly similar to the existing one;
- Trade Mark Infringement (assuming the existing name does have a trade mark); or
- an application to the Company Names Tribunal pursuant to section 69 Companies Act 2006 (as above).
Whilst the decision in this case is not overly surprising it does serve as a useful reminder to consider a company name carefully from the outset and to take advice if looking to bring a challenge.
Posted on 10/05/2023 by Ortolan