O-233-18

Companies Act 2006

In the matter of application No 1298 by joint applicants BILL LANDON and BILL LANDON BATHROOMS LTD for a change to the company name of LANDONS WETROOM SHOWERS LIMITED (company number 10124720)

Background and pleadings

1.  LANDONS WETROOM SHOWERS LIMITED (‘the primary respondent’) was incorporated on 14 April 2016. 

2.  On 13 October 2016 (‘the relevant date’), BILL LANDON and BILL LANDON BATHROOMS LTD (‘the applicant’) applied for an Order under section 69(1) of the Companies Act 2006 (‘the Act’) for the primary respondent’s name 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 claims that the name ‘Landons’ is associated with it. The applicant claims that it has a reputation/goodwill in ‘Landons’, in relation to the provision of bathrooms, wet rooms, kitchens and general home improvements in the Birmingham and surrounding West Midlands area since the late 1960s. The applicant also claims that “suppliers and new customers have already made comments about if this is a new branch.” The final section of the statutory form includes the following:

“Landons Limited are in the process of relocating and expanding and if Landons Wetroom Showers Limited are allowed to continue under the Landons name this will be a conflict in those areas/locations.”

Landon’s Limited is not identified as the applicant or joint applicant.

5.  The applicant requested that a director of the primary respondent, Mr Roger Alfred Charles Niblett, be joined to the proceedings as a co-respondent. The request was permitted without objection from Mr Niblett.

6.  The primary respondent filed a defence on 12 December 2016, which has been written by Mr Niblett. Against the individual defences provided for by section 69(4) of the Act, which are listed on the form, Mr Niblett has written “Points 1 and 6” against “Was formerly operating under the name and is now dormant”; “Point 2” against “that your 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”; and “Point 5” against “that the interests of the applicant are not sufficiently affected to any significant extent”.  The points referred to appear to correspond to the numbered paragraphs contained in the statement of case attached to the statutory notice of defence form.  We note that the contents of these paragraphs do not all appear to correlate to the listed defences.  Points 1 and 6, said to relate to the defence of “was formerly operating under the name and is now dormant”, refer to another company name, Landons Bathrooms Ltd (05515888) and to Mr Niblett’s start-up costs for the contested company name.  The contents of paragraph 2 relate to Mr Niblett’s request that his accountants registered the contested company name on his behalf.  As the respondent is not a company formation business, the defence of “your 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” cannot apply.  

In summary, we note the following points in the counterstatement: 

•	In 2005, ‘Landons Bathrooms Ltd’ (company registration no. 5515888) was formed by Roger Niblett, Eddie Landon and Darren Fowler. The primary respondent claims that Mr Fowler complained to Companies House that the name ‘Bill Landon Bathrooms Ltd’ was too similar to the Landons Bathrooms Ltd. Companies House did not refuse the name since, in Mr Niblett’s words,  the addition of the word ‘Bill’ was considered to make the names sufficiently different so as not to cause confusion. No other details have been provided relating to this alleged challenge.

•	Mr Niblett states that he has been associated with the ‘LANDON(S)’ name for more than 25 years working as a preferred installer and then as a sales representative up until ‘Bill Landons Ltd’ closed. Following this, Messrs Niblett, Landon and Fowler formed Landons Bathrooms Ltd.  He instructed his accountants to register the contested company name in April 2016.

•	Mr Niblett has spent a considerable amount of money trying to set his business up: he estimates the cost of signage, the website, ‘construction’, stationery and advertising to have cost £4,000, and an estimated £30,000 in showroom costs. Advertising commenced on 28 October 2016.

Representation

7.  Neither party is professionally represented. 

Applicant’s evidence

8.  The applicant’s evidence consists primarily of two witness statements from Mr William Paul Stanley Landon, known as Bill Landon, both of which are dated 26 July 2017. A witness statement from Darren Fowler is also provided.  Mr Landon identifies himself as a director of the applicant.

9. Mr Landon begins by stating that the name ‘Landon Wetrooms Showers Ltd’ is sufficiently similar to his company name ‘Bill Landon Bathrooms Ltd’ that it has led to marketplace confusion. He provides two examples. Firstly, an ‘Order Acknowledgment’ from a company called HiB Ltd. It is addressed to ‘Bill Landon Kitchens Ltd’ with a shipping address of ‘Bill Landon Bathrooms’. The order is dated 18 November 2016 (after the relevant date) and is for a ‘Diffuser for Flare/Fahrenheit 80’ which appears to have been supplied free of charge. The inference is that this order was not placed by the applicant though this is not explained or stated as being the case. The second example is a delivery note from a company called Barwick which has a delivery address of Bill Landon Bathrooms. It is dated 14 February 2017 and contains the hand written note, ‘Sent back to Barwicks. This Order is not ours it is for Landon Wetrooms in the Tyburn Road, Erdington Birmingham emailed to Barwick 15.2.2017’. These examples are both after the relevant date.

Exhibit 3 of the witness statement

Exhibit 9 of the witness statement

10. Exhibit 1 is a letter from a member of the public (Ms. Emily Morden) dated 24 January 2017.  It appears to have been solicited for these proceedings and is hearsay. Ms Morden effectively states that, in December 2017, she was recommended by her bathroom fitter to visit Landons in Droitwich Spa to pick out a new bathroom suite and use their design services.  This date cannot be correct because her letter is dated 24 January 2017.  Exhibit 2 is an itemised invoice listing the work provided to Ms Morden, dated 20 December 2016, which suggests that she meant to say December 2016.   She later learnt that there was a Landon showroom closer to her home which was not in fact the same Landons but a showroom of the primary respondent. This instance of alleged confusion is after the relevant date.

11. Mr Landon states that his company has spent vast amounts of money over the years promoting and advertising Bill Landon Bathrooms and the ‘Landon’ Brand. Exhibit 6 is an ‘Advertisement feature’ headed ‘Showroom is best in Europe’. It refers to Bill Landon and Sons Ltd as an ‘Award-winning company which built on proud family tradition’. The article is not dated nor is the name of the publication or geographical audience indicated.  Mr Landon refers to having won awards for the quality of the applicant’s showrooms and service from companies such as Showerlux and Novillini.  He does not provide direct documentary evidence relating to such awards, but the Showerlux award is referenced in the advertisement feature (Exhibit 6).  The article says that Bill Landon started his business, Bill Landon and Sons Ltd, in 1951, and later refers to the firm having had a half century reputation for honesty and good trading.  This would date the advertisement as having been published in around 2001.  It appears to have been featured in a local publication because it refers to the business as being located in ‘Ladywood’.  This presumes local knowledge of where Ladywood is.

12. Exhibit 10 to the witness statement is an undated press article headed ‘Award win for bath kings’ with a picture of the Lord Mayor of Birmingham, Mr Landon and his wife, Mary. The article is not dated and it is not stated where the article was published. However, the article refers to the “Showerlux Showroom of the Year Award for the region”, so it may be inferred that it dates from around the same time as the advertisement feature and is a publication local to the West Midlands (where the applicant’s business is located – Mr Landon is quoted in the article as having returned to ‘Brum’ to set up his business, after the Second World War).

13.  Mr Landon states that over the last 60 years he and Bill Landon Bathrooms Ltd have developed the requisite goodwill/reputation in the ‘Landons’ name. Exhibit 11 to his witness statement is an undated article headed ‘A life time of work…A conversation with Bill Landon’. It includes a picture of Mr Landon who outlines his career. The article has little reference to selling bathrooms except for a cinema hall being opened in 1927 and that Mr Landon ‘would still be visiting the building over 70 years later, but by then he’d not be watching films but would be selling bathrooms in it!’.  This puts the date as being around 2000, as with the other two undated articles.

14. Mr Landon states that during his trading years he made various charitable donations, including the donation of a Jacuzzi bath to the Birmingham’s Children’s Hospital and with the Birmingham Lord Mayors Christmas tree fund. No specific details, including the dates, or supporting documentary evidence, have been provided to support this claim. 

15. Finally, Mr Landon questions the motivation for the primary respondent applying for the company name, complaining that it is in bad faith.  He states that the “main purpose of Landons Wetrooms Showers Ltd and Roger Niblett’s registration of the name Landon Wetroom Showers Ltd was to obtain monies (or other consideration) from Bill Landon Bathrooms Ltd”.

16.  Mr Landon’s second witness statement begins with a rebuttal of Mr Niblett’s statement (in the counterstatement) that Darren Fowler made a complaint to Companies House about the Bill Landon Bathroom’s Ltd (as being too similar to Landons Bathrooms Ltd).  

17.  Mr Landon states that the applicant’s directors were unaware when Mr Niblett commenced his new business that ‘Landons’ would be included in the ‘business title’. However, Mr Landon also states that the applicant’s directors did give their blessing to Landon Bathrooms Ltd while there were members of the Landon family working within the company.  Exhibit 4 is a ‘To Who it May Concern’ letter, solicited for the proceedings.  It is hearsay because it is not in evidential form (i.e. signed with a statement of truth).  Since it is not in evidential form, the writer of the letter cannot be cross-examined as to the truth of the contents.  This affects the weight which can be attributed to the letter.  The weight is also affected by the absence of a date.

18.  The letter is signed by Mrs Ann Brander.  She identifies herself as one of the directors of ‘Bill Landon & Sons Limited’.  She also refers to herself as being the daughter of the late Bill Landon, the founder of the applicant.  She says that her son, Darren Fowler, and her nephew Edward Landon both worked for Bill Landon & Sons Limited, and that Mr Niblett was one of the salesmen.  Mrs Brander says that when Bill Landon & Sons Limited ceased trading she was pleased to hear that her son (Mr Fowler) and her nephew (Edward Landon) were going to start up a new business together under the name Landons Luxury Bathrooms Limited.  She says she gave them her blessing as they are part of the Landon family.  She says that Messrs Fowler, Landon and Niblett became directors of the new company.  She says that in 2016 the new company ceased trading and Messrs Fowler, Landon and Niblett went their separate ways.  Although presented as hearsay, we note that these points are contained in the counterstatement.

19.  Mr Landon refers again to the instances of ‘confusion’ referred to in his first witness statement.  Mr Landon states that, contrary to Mr Niblett’s counterstatement, Mr Niblett was not a preferred installer, but was a recommended fitter who was employed by the applicant for less than a year.

20.  Mr Landon states that the applicant’s complaint to this tribunal was made on 12 October 2016 (the effective date is 13 October 2016, because this is when the form was received).  He states that 12 October 2016 is 16 days before the primary respondent’s signage was displayed and the advertising had been placed.  He states that the applicant had been informed in July 2016 that the primary respondent had opened a Facebook account, which many of the Landon family and friends had ‘liked’ and commented upon before discovering that there were no Landon family members involved.  Mr Landon states that Darren Fowler has never followed the primary respondent on Facebook.  As supporting evidence, Exhibit 5 is a screenshot of two postings on the primary respondent’s Facebook page, one stating that Mr Fowler had been to the showroom and the other making a comment.  Mr Landon states that these two postings had been taken from another Facebook account and fraudulently placed on the primary respondent’s Facebook page.  The two postings are dated 23 November 2013, nearly two and a half years before the primary respondent was registered.

21.  Mr Landon ends this witness statement by referring to the primary respondent’s choice of including the Landon name as being to promote the company and profit from the good name and reputation that the Landon family has built up over the last six decades.

Witness statement of Mr Darren Fowler

22. Mr Darren Fowler identifies himself as Company Director at Bill Landon Kitchens Ltd and Landons Ltd.  His witness statement is also dated 26 July 2017.

23. Mr Fowler states that Mr Niblett was ‘offered the opportunity to set up a bathroom showroom’ (he does not state by whom) with Mr Fowler’s knowledge, but Mr Fowler was not informed that the Landon name would be used in the company name.  Mr Fowler states that if he had known, he would not have approved. 

24. Exhibit 7 consists of an advertisement from the ‘JOURNAL’ dated January 2017 (after the relevant date) and headed ‘LUXURY from Landons’. The article states that ‘Roger Niblett, a former co-owner of Landons Luxury Bathrooms is pleased to announce that his new showroom featuring beautiful wetrooms and built in showers is now open.’ It goes on to state that ‘Roger has been associated with the Landon brand for more than 25 years since starting as an installer for Bill Landon in Ladywood’. 

25. The rest of Mr Fowler’s statement concerns the Facebook postings which he denies having made on the respondent’s Facebook page 9 but which he made on his own Facebook page. Mr Fowler does not refer to the claim made by Mr Niblett that he made a complaint to Companies House about the similarity between the applicant’s name and Landons Bathrooms Ltd (the earlier company of which he was a director along with Edward Landon and Roger Niblett). 

Primary respondent’s evidence

26. The primary respondent’s evidence consists of a witness statement, dated 9 September 2017, from Mr Roger Alfred Charles Niblett who, as mentioned above, is one of the primary’s respondent’s directors and the co-respondent in these proceedings. 

27. Mr Niblett challenges the applicant’s claim that no complaint was made to Companies House against the registration of Bill Landon Bathrooms Ltd. Notwithstanding this, we must consider the issue before us and any decision previously made by Companies House (or not as the case may be) has no bearing on these proceedings (because different sections of the Act are involved).  The considerations by Companies House under the ‘too like’ provisions are entirely different to those with which these proceedings are concerned.   

Sections 66 to 68 of the Act.

28. Mr Niblett points out that exhibits 1-9 of Mr Landon’s witness statement are all after the relevant date. He also states that exhibits 6, 10 and 11 all relate to Bill Landon and Sons Ltd, ‘a company that was sold lock, stock and barrel to Advantage West Midlands in 2005/6’. Mr Niblett refers to the fact that the statutory application mentions another company, Landons Ltd, as relocating.  He exhibits company registration details for Landons Ltd (09938067) (Exhibit A), showing Mr Fowler, Edward Landon and Bill Landon as the three directors.  He states that Landons Ltd is a new business.  Mr Niblett states that he believes that he and his fellow directors of Landons Bathrooms Ltd (i.e. Edward Landon and Mr Fowler) had divided the assets of their company (which no longer trades), including any goodwill.  

Paragraph 3 of the witness statement

29. Mr Niblett states that the ‘Order acknowledgement’ referred to by Mr Landon was not placed by his company. To support this claim he filed a proof of delivery docket which is signed by S Landon, who Mr Niblett claims to be the driver/warehouse operative for Bill Landon Bathrooms Ltd. Therefore, he claims that the order may have been for Mr Landon and most certainly states that it was not for him/the primary respondent. As previously stated, the order is after the relevant period. 

Exhibit 3 to Mr Landon’s witness statement

Exhibit D to Mr Niblett’s witness statement

30. With regard to the attempted delivery from Barwick, Mr Niblett states that this ‘was an administration error on behalf of Barwick. Barwick have now corrected their input reference…’. Again, this is after the relevant period, although we note that Mr Niblett states that he has received over 200 deliveries from Barwick and other suppliers, including prior to 12 October 2016.

See paragraph 9 above and Exhibit 9 to Mr Landon’s witness statement.

Paragraph 3 of the witness statement

31. Mr Niblett then contests the ‘hearsay’ statement provided by Ms Morden (made under cover of the statement of Mr Landon) saying that it ‘smacks of coercion’.  In response to Mr Fowler’s evidence concerning the alleged fraudulent Facebook posts, Mr Niblett exhibits (Exhibit G) a witness statement from his son, Tom Niblett.  Tom Niblett believes that the confusion over Facebook postings have arisen because Mr Fowler joined together two separate Facebook pages for Landons Bathrooms Ltd, when that company was still trading and that Mr Fowler’s page is still active.  Tom Niblett includes screenshots from Mr Fowler’s personal Facebook page which is open to the public, including content showing that Mr Fowler has had problems with hacking in the past. 

32.  Tom Niblett explains that after Landon Bathrooms Ltd ceased trading, Edward Landon and Darren Fowler chose to join Bill Landon Bathrooms Ltd and had equal opportunity as Roger Niblett (with whom they had owned Landon Bathrooms Ltd) to create a new showroom bearing the Landon name.  Tom Niblett believes the present action has been launched by the applicant because Roger Niblett has created a successful business which bears the Landon name, but that he is not a blood relative (unlike the other directors).

33. Exhibit I consists of VAT returns for the primary respondent. They are for the period 1 September 2016 to 31 January 2017. They show a total sales figure of £3,174, and the total value of purchases to be £18,473. Another VAT return is included for the period 1 February 2017 to 30 April 2017 which indicate sales of £34,846. 
34. Exhibit J consists of an invoice dated 4 October 2016 (before the relevant period) from a Mr Alan Smith to Landons Wetroom Showers Ltd for the sum of £4300. The invoice is ‘For all works carried out in showroom’.

35. Exhibit K consists of a letter from a firm of accountants dated 27 April 2017 to the primary respondent. The letter refers to expenses incurred by Mr Niblett to the sum of £12,000 for refurbishment costs to the showroom and that they would be refunded to his director’s loan account. 

Williams, Ashton & Anderson Limited

36. Exhibit L consists of a list of invoices from Local World dated between 26 October 2016 and 6 September 2017 for advertising costs. There are in excess of 100 references to various invoices, showing weekly payments of about £360, suggesting weekly advertisements. However, there is no information about where ‘Local World’ advertise, nor an indication of the number of people who may view such advertisements, and in what format.  

37. Exhibit M consists of a Facebook message from Mr Fowler dated 9 September 2016. Mr Niblett states that Mr Fowler has repeatedly denied knowledge of his new company yet, he claims, the message wishes him well in his new venture. The message is ‘wishing Roger well in his new venture’ but this does not prove knowledge of the details of the new venture.  The message states that Mr Fowler has joined up with Eddie Landon and Billy Landon to start a new business, ‘Bill Landon Bathrooms’, and refers to Roger Niblett as being his old business partners (they were the three directors of Landons Bathrooms Ltd).

38. Exhibit N is an extract from Landons Wetroom Showers Ltd Facebook page dated 25 July 2016 which ‘shows the build progress’ and includes the text ‘Showroom coming along nicely. Not long till it will be looking professional’.

39.  Mr (Roger) Niblett states that he has never sought monies or other considerations from the applicant; that he is operating under the name; and that he has incurred substantial start-up costs.
Applicant’s evidence in reply

40. The applicant’s further evidence consists of another witness statement from Mr Landon, dated 20 November 2017.  Exhibit A to Mr Landon’s witness statement is an internet extract which shows that, as the crow flies, the distance between Dodford and Erdington is 15.74 miles, and the distance between Droitwich and Erdington is 22.23 miles. This is intended to counter a dispute with the primary respondent which has no bearing on these proceedings.

Exhibit B

41.  Mr Landon states that he worked at Bill Landon and Sons Limited from 1975 until it closed down in 2006.  He refers to various relatives having worked there and that it was a family business.  He also refers to the dormant company Landon Bathrooms Ltd and states that no action is being taken against it because it is dormant and because two of the directors are members of the Landon family “which would give them the moral right to use the name”.

42.  We note here that Mr Landon refers to a request by the primary respondent for costs above the scale.  Mr Landon confuses this with section 69(5) of the Act, which refers to the main purpose of registering the name as including to obtain money from the applicant.  Costs for bringing or defending legal proceedings are an entirely separate matter.  Section 69(5) relates to the main purpose of registering a name as being to prevent the applicant from registering the name or to extract money (or other consideration) from the applicant.  It is comparable to ‘cyber-squatting’; i.e. the registrant (respondent) had no intention of using the name to trade, but instead to sell it back to the applicant (by blocking the applicant from applying for a name in which it has a reputation/goodwill).

Hearing/submissions

43. The parties were given an opportunity to request a hearing. Neither party did so. The applicant filed written submissions in lieu of a hearing. These submissions re-state and highlight what has already been stated. The primary respondent also filed submissions which Mr Landon claims to also contain evidence. Having reviewed the submissions filed, they do not appear to include evidence and they shall be taken into consideration where necessary. However, it should be highlighted that they merely repeat submissions and arguments already stated and offer some further criticisms of the applicant’s evidence. 

Decision

44. If the primary respondent defends the application, as here, the applicant must establish that it has goodwill or reputation in relation to a name that is the same, or sufficiently similar, to that of the primary respondent’s company name suggesting a connection between the latter and the applicant.  If that burden is fulfilled, it is then necessary to consider if the primary respondent can rely upon any defences under section 69(4) of the Act.  

The applicant’s goodwill/reputation

45. Section 69(7) of the Act defines goodwill as “reputation of any description”.  Consequently, although it plainly covers it, it is not limited to Lord Macnaghten’s classic definition of goodwill in IRC v Muller & Co’s Margerine Ltd [1901] AC 217:

“What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation, and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start.”

46. The name in question is LANDONS. The applicant must show that it had goodwill/reputation under that name at the date of the application before us, namely 13 October 2016.

47. Much of the applicant’s evidence is after the relevant date or is undated. For example, Mr Landon seeks to rely upon two apparent instances of confusion, the first being an order acknowledgement dated 18 November 2016 and the latter an order placed on 14 February 2017. Another instance of apparent confusion is the statement from Ms Morden. This refers to an incident in December 2016 (this is confirmed by the invoice filed), which is two months after the relevant period. 

Exhibit 1 to Mr Landon’s witness statement

Exhibit 2 to Mr Landon’s witness statement

48.  Furthermore, the relative age of some of the evidence casts doubt about the applicant’s goodwill/reputation in the Landons name at the date of application.  Further factors complicate matters.  Bill Landon states that the company to which the older (undated) evidence relates ceased trading in 2006 (the original business founded by his grandfather, also Bill Landon).  The second complicating matter is that the name Landons formed part of the business owned by the present co-respondent (Roger Niblett) and two of the applicant’s directors, Landons Bathrooms Ltd.  Mr Fowler’s post about that business closing and his new venture with Eddie and Bill Landon was posted just a month prior to this application being filed.  The applicant has not provided details about the applicant’s business, such as advertising, turnover figures, invoices (before the relevant date).  The applicant was a new company at the relevant date.  Bill Landon asserts that he, Edward Landon and Darren Fowler have a moral right to use the name because they are part of the Landon family.  This is an erroneous view of the law.  Goodwill is a property right.  There is no evidence about what has happened to the goodwill subsisting in Landons Bathrooms Limited, which is/was co-owned by Roger Niblett.  Any recent reputation in the Landon name may be due to the business generated by Landons Bathrooms Limited, which Mr Niblett co-owns.  There is no automatic right to the use or control of a name in trade, even a family one.

See, for example, the decision of the Court of Justice of the European Union, Emanuel v Continental Shelf 128 Ltd Case C-259/04, in which the fashion designer Elizabeth Emmanuel failed in her attempt to control the use of her name as a trade mark, which she had previously sold to a third party.

49.  Section 69(1) places a burden on the applicant to demonstrate that ‘he has goodwill/reputation’ in order to ‘object to a company’s registered name’.  For the reasons given above, this burden has not been satisfied and so the applicant’s claim fails.

50. Ordinarily this would be the end of the matter. However, for the sake of completeness, we shall assess the primary respondent’s defences to see if any of them (as they appear in the counterstatement) would succeed, notwithstanding our finding regarding the applicant’s reputation/goodwill in Landons.

Similarity of names

51.  The name relied upon, Landons, is the first word in the contested company name, Landons Wetroom Showers Limited.  Wetroom Showers describes the nature of the business activities, and Ltd indicates the legal nature of the businesses.  The distinctive and dominant part of the company name is therefore the same as the name relied upon by the applicant.  We find that the names are similar under section 69(1)(b) of the Act.

Defences

52. Notwithstanding the above, even if the applicant had demonstrated that it had the requisite goodwill, the primary respondent appears to have a valid defence on the basis that, at the date of application, it was proposing to operate and had incurred substantial start-up costs in preparation.  This would give the primary respondent a defence under s.69(4)(b)(ii) of the Act. 

53. The evidence shows that the company name Landons Wetroom Showers Ltd was preparing to operate before the relevant date. Exhibit J is an invoice addressed to the primary respondent amounting to £4300 for ‘For all work carried out in showroom’. The invoice is dated 4 October 2016 and is consistent with the showroom being opened prior to Christmas of the same year.  Further,  the VAT returns for HMRC which date from 1 September 2016 to 31 January 2017 show not only sales of over £3,000, but also purchases of over £18,000, suggesting purchase of stock or showroom fittings.   By April of 2017, the primary respondent’s accountants had confirmed that the £12,000 showroom refurbishment costs (paid by Mr Niblett) would be charged to the company.  This work was clearly being undertaken at least by the date of the invoice for £4300.  Advertising costs had been incurred by 26 October 2016, just a few days after this application was filed, and the applicant corroborates this in its own evidence.

Exhibit 7 of Mr Landon’s witness statement

Exhibit I to Mr Niblett’s witness statement

54.  Therefore, we find that the evidence shows that, at the relevant date, the primary respondent was proposing to operate under the company name, and had spent considerable start-up costs. The evidence also indicates that the primary respondent continues to operate under the company name. This view is supported by Mr Landon’s claims to confusion, soon after the relevant date.  This is consistent with the nature of the ‘operating’ defence:  the main purpose of s.69 is not to prevent confusion or deception from occurring, but is intended to provide redress against opportunistic company name registrations, or in simpler language, company name squatting, i.e. holding a company name, without using it, in order to extract consideration from a party with a trading interest in that name.  It is not intended to replace, or provide an alternative to actions between those who are actually trading (such as passing-off or trade mark infringement proceedings, which may have an entirely different outcome).  
 
55. The primary respondent has a prima facie defence to this application under s.69(4)(b) (ii). 

56. According to s.69(5), if the facts mentioned in s.69(4)(b) are established, the objection shall nevertheless be upheld if the applicant shows that the main purpose of the primary respondent in registering the name was to obtain money (or other consideration) from the applicant or prevent him from registering the name.

57. Whilst the applicant claims this to be the case, there is no evidence to support such an intention. Therefore, even if the applicant had established goodwill/reputation the application would fail because the primary respondent could rely on the defence provided by s.69(4)(b)(ii).
Costs
58. The primary respondent has been successful and is entitled to a contribution to its costs, according to the scale in the published Practice Direction. Neither party has been professionally represented in the proceedings.  The primary respondent has requested costs above the scale on account of the trouble to which it has been put.  It is the very nature of legal proceedings that they are bothersome to those who are a party to them.  We do not see anything unusual in these proceedings and so will make an award on the scale.
59.  Save for the official fees incurred, the award will be half of the amount which would have been appropriate had a legal representative been engaged. The breakdown of the award is as follow:
Preparing a statement and considering the other side’s statement £100
Preparing evidence and considering and considering and commenting on the other side’s evidence £250
Fee for notice of defence: £150

Fee for filing evidence: £150
Total: £650
60. Bill Landon and Bill Landon Bathrooms Ltd (jointly) are ordered to pay Landons Wetroom Showers Limited the sum of £650. This sum is to be paid within fourteen days of the expiry of the appeal period or within fourteen days of the final determination of this case if any appeal against this decision is unsuccessful. Under section 74(1) of the Act, an appeal can only be made in relation to the decision to reject the application; there is no right of appeal in relation to costs.

61. Any notice of appeal against this decision must be given within one month of the date of this decision. Appeal is to the High Court in England Wales and Northern Ireland and to the Court of Session in Scotland. The tribunal must be advised if an appeal is lodged.

Dated this 12th  day of April 2018

Mark King 			Judi Pike			Christopher Bowen	
Company Names		Company Names		Company Names
Adjudicator			Adjudicator			Adjudicator