How to complain about a company name – an update for brand owners

Estee Lauder (UK) International Limited, Virgin International Limited and ASOS Clothing Ltd may all appear to be examples of recognisable companies. They are, in fact, UK companies that have been the subject of successful Company Name Tribunal (CNT) complaints in 2024, by Estee Lauder Cosmetics Limited, Virgin Enterprises Limited and ASOS Plc respectively.

It seems obvious that these types of company names are going to be both confusing to consumers and that brand owners will want to take action, but what’s the mechanism to complain, and how have the recent changes to the law impacted the approach?

The Company Names Tribunal provides a mechanism whereby you can force a company to change its name if you can show that you have grounds to do so. There are fairly strict criteria as to when the CNT can be used; you must be able to show that you have goodwill or a reputation in the name you are claiming the company name is similar/identical to, the company names must be sufficiently similar and the respondent to the action must not have any defences available.

Historically, the available defences have been relatively broad. For example, a company would be able to overcome a CNT dispute if they could simply show that they had they had been operating under the name or had incurred substantial start-up costs to do so. The impact of this is that scope to successfully force a company to change its name can be limited and it only deals with the company name as it appears on Companies House. It does not deal with any infringing use and so a CNT dispute is not a substitute for costly and often longwinded trade mark infringement proceedings.

On 4 March 2024, changes were made to the Companies Act 2006 with immediate effect to ongoing proceedings at the CNT. The most significant change is that Section 69(4)(b) has been repealed, meaning a defendant in a CNT dispute now has fewer defences to rely upon. The changes are good news for brand owners although the remaining defences are still fairly broad, including that:

1. the name was registered before the brand owner acquired goodwill in the name; or
2. the name was registered in the ordinary course of company formation, and the company is available for sale to the brand owner; or
3. the name was adopted in good faith; or
4. the interests of the brand owner are not adversely affected to any significant extent.

It remains to be seen how these more streamlined defences will be viewed by the CNT and indeed, if it has any material impact to the decisions of cases, given that the assessment of “good faith” and “significant extent” are arguably more complex and grey areas to assess than some of the repealed defences. For example, it’s unclear whether “good faith” is to be assumed unless “bad faith” can be shown by the claimant. Neither is it yet clear how “adverse” effects to the brand owner be attributed specifically to the company name at issue.

The take home message for brand owners is that the changes increase the potential to enforce rights at the CNT. By registering your trade marks and setting up watches of the trade mark and company register, you can be vigilant in taking action against company names that are too close to your own, protecting your own interests in your name. If you would like advice about how to do this, please contact our trade mark team by emailing gje@gje.com.