Decision on AKSA Holdings Limited

Question 1

The applicant indicates that it is claiming its costs.

Accepted Answer

8. On 30 June 2021, the primary respondent filed an amended Form CNA2 (鈥淣otice of defence鈥�) which was completed by Anjam Jalal, who is a director of the primary respondent. In that defence, the primary respondent indicated it was relying upon defences under sections 69(4)(b), (d) and (e) of the Act and that it was claiming costs.

9. In these proceedings, the applicant is represented by Keltie LLP (鈥淜eltie鈥�), the primary respondent represents itself. Only the applicant filed evidence. However, as this Tribunal routinely looks for guidance to case law developed in trade mark proceedings to assist it, given the comments of the Appointed Person, Mr Daniel Alexander Q.C., in 鈥淪IMMONS鈥� trade mark (BL-O-468-12) and as the Form CNA2 was completed by Mr Jalal, we intend to treat his pleadings and the attachments to that Form as evidence.

10. The parties were asked if they wanted a decision to be made following a hearing or from the papers. Although neither party requested a hearing, the applicant elected to file written submissions in lieu of attendance. We shall refer to these submissions, as necessary, below.

Question 2

The applicant鈥檚 evidence

Accepted Answer

11. This consists of a witness statement, dated 27 August 2021, from Rosemary Cardas, a trade mark attorney at Keltie. Attached to her statement as exhibit RC1 is a copy of the witness statement of Amber Wilkinson dated 7 April 2021, accompanied by ten exhibits. We note that Ms Wilkinson鈥檚 statement and exhibits were summarised by the Adjudicators in application no. 3208, in relation to an application by AXA for a change of name of company no. 12618163 鈥淎KSA LONDON LTD鈥� 鈥� (BL-O/124/22 dated 16 February 2022 refers). Having reviewed the Adjudicator鈥檚 summary of this evidence, we are happy to adopt it for the purpose of these proceedings. The Adjudicators stated:

12. > 鈥s Wilkinson is the director of Strategy, Brand and Communications at AXA UK PLC, a position she has held for two years. Ms Wilkinson explains that AXA UK PLC is owned and controlled by the applicant.

13. Ms Wilkinson states that the name AXA was adopted in 1985 and:

5. 鈥oday is one of the world鈥檚 leading insurance and asset management companies with earnings of 鈧�97 billion with 153,000 employees, operations in 42 countries and 105 million clients.

14. The AXA name and trade mark has, she states, been used globally including throughout the UK since 1985. In the UK, it employs 10,000 people and services 10 million customers through its insurance and healthcare operations, AXA Insurance and AXA PPP Healthcare.

15. Exhibit AW1 consists of a witness statement, dated 20 July 2017, from Darrell Sansom and nine accompanying exhibits. At the time of his statement, Mr Sansom was the Chief Marketing Officer for AXA UK and Ireland. Ms Wilkinson notes that this was filed as evidence in company name proceedings 1340 and explains that:

7. 鈥ince this demonstrates reputation and goodwill in the AXA name in the UK up to 2016 my witness statement will prove that the goodwill and reputation in AXA in the UK continues to exist and existed on 22 May 2020 when AKSA LONDON LTD was registered鈥u003c/p>

16. We note that the Adjudicators in application 1340 stated (with footnotes omitted):

10. 鈥r Sansom鈥檚 evidence goes to AXA鈥檚 reputation, which is for financial services, mainly insurance. The name AXA has been used globally since 1985, including in the UK. The applicant employs 10k people in the UK and has 10m customers here. It is one of the biggest insurers in the UK providing personal and commercial insurance and controlling nearly 拢2.5 billion in premiums. An article published in The Sunday Times on 21st May 2017 described Axa as an 鈥渋nsurance giant鈥�. In 2016, Interbrand, a brand strategy and design consultancy, ranked AXA 1st amongst global insurance brands for the eighth year running as well as being one of the top three financial services brands. In support of the applicant鈥檚 claim that AXA has a substantial reputation in the UK, Mr Sansom points out that all the hits on the first 10 pages from the results of a search for AXA conducted on Google (in July 2017) related to the applicant.

11. The AXA trade mark is generally used in a logo form, which looks like this.

12. The AXA name was also used in combination with (mostly) descriptive secondary elements prior to the relevant date. For example, AXA PPP Healthcare, AXA Insurance, AXA Wealth, and AXA Self Investor.

13. The applicant advertised business insurance on its axa.co.uk website prior to the relevant date. And by no later than 20th July 2017鈥he applicant鈥檚 UK website provided details of more specific business insurance options, including鈥u003c/p>

17. We further note the Adjudicators concluded:

24. The applicant claims to have a very substantial reputation in the UK under the name AXA in relation to insurance, finance, wealth and asset management. In this connection, the applicant points to the length and scale of its business in the UK and the recognition and high ranking of the brand by third parties, such as Interbrand.

25. We find that AXA has a substantial reputation and goodwill in the UK. This is mainly as an insurance business, but also extends to some other financial services, such as wealth and asset management. It is true that the name is usually used in the logo form shown at paragraph 11 above. However, the letters AXA are clearly visible in that logo. AXA is how customers would vocalise the brand. The name AXA is also used in word form on the applicant鈥檚 website. And others use the name to identify the applicant without having to use the logo form. For example, The Sunday Times described 鈥淎xa鈥� as an insurance giant. Admittedly this was in 2017, but given the length of the applicant鈥檚 business in the UK there is no reason to doubt that the meaning of AXA would have been any different at the relevant date of incorporation of the respondent.

We shall return to these conclusions later in this decision.

18. Exhibits AW2 and AW3 consist of pages obtained from www.axa.co.uk and www.axa.com respectively. The pages indicate that they were printed on 7 April 2021. The pages provided contain images of the AXA trade mark in the logo form shown above and also in the 鈥渨ord form鈥� i.e. AXA. Exhibit AW2 contains references to a wide range of insurances services. Exhibit AW3 is to a similar effect, although asset management is also mentioned.

19. Exhibits AW4 to AW6 consist of press releases issued on 25 February 2021, 20 February 2020 and 21 February 2019 respectively, taken from www.axa.com. The press releases announce the 鈥淔ull Year Earnings鈥� for the applicant in 2020, 2019 and 2018 respectively. The press releases bear the AXA logo and word form and indicate that in relation to the UK & Ireland, in the periods mentioned, the revenue figure never fell below 鈧�5.1 billion.

20. Ms Wilkinson states that:

14. AXA invests significantly in advertising and promotional activities in the UK. This includes television advertising on national television channels, advertisements in national newspapers, advertisements in trade publications, poster campaigns in cities throughout the UK, sponsorship and digital advertising.鈥漒u003c/p>

21. She further states that annual advertising in the UK in the years 2018-2020 amounted to 拢42.9m. Exhibit AW7 consists of examples of such advertising between 2015 and 2020, with Ms Wilkinson noting:

16. 鈥his includes details of television advertising on the ITV networks, Channel 4, C4 Digital and Sky and Five Networks; national newspaper advertisements in the Financial Times, The Times, Daily Telegraph, The Guardian; business publications including City Wire, Corporate Advisors, Portfolio Advisor, Financial Advisor, Investment Advisor, New Model Advisor: advertisements in non-business publications including The Metro, Good Food magazine; poster campaigns featured on the roadside and rail sites across the UK; digital display banners broadcast across multiple website and digital advertisements placed on ebay.co.uk, streetmap.co. uk, lycos.co.uk, Facebook.

We note that either the AXA logo or the logo and word form or word form alone appear in the examples provided.

22. Exhibit AW8 consist of a page from liverpoolfc.com. dated 3 May 2019. It states:

Liverpool FC has today announced that AXA, the world鈥檚 leading insurance brand, will become a principal partner and the club鈥檚 new official training kit partner from the 2019-20 season.

23. The pages provided contain the following image:

Board directors of Liverpool FC holding jersey sponsored by AXA

24. Exhibit AW9 consists of pages obtained from Interbrand.com, which indicates that in the years 2018, 2019 and 2020, AXA was ranked 47th, 46th and 48th respectively in the Interbrand Report of Best Global Brands.鈥漒u003c/p>

Question 3

The respondent鈥檚 comments contained in its Notice of Defence

Accepted Answer

25. As the amended Form CNA2 contains the only comments we have from the primary respondent, they are reproduced in full:

We strongly deny any assertion that the purpose for selecting the name AKSA Holdings Limited was to take advantage of the AXA brand name or that the two entities could ever be confused with each other.

We believe that exemption 4(d) of Section 69 of the Companies Act 2006, namely that the name was adopted in good faith should apply in this case. The good faith is demonstrated by the fact that the inspiration for the company name came from our daughter鈥檚 name, Amina Aqsa, who was born on 2 February 2021. The company was registered only 2 weeks after on 18 February 2021. We attach a copy of the birth certificate to this defence for your reference. We selected AKSA Holdings Limited to sound phonetically the same as her name, albeit with slightly different spelling. The applicant鈥檚 company or any similarities to the name AXA was not even a consideration in the name selection process. We hope this satisfies the Tribunal that the intention behind the company name had nothing to do with taking advantage of AXA 鈥榮 goodwill and it was adopted in good faith.

On the possible question, although not intended, could there be public confusion between the two entities to the extent that AKSA Holdings limited may inadvertently take advantage or cause damage to the AXA brand name, we have the following points:

that purpose of the company is that it would hold our personal investments, principally in residential and commercial property (as demonstrated by current project under consideration). There is no overlap in the nature of the activities between the two

we do not intend to advertise or market the company to the public in any form. We do not have and do not plan to have a logo, a website or have any presence on any social media or business platforms. It is simply a convenient vehicle to hold our investments and simplify our tax affairs. Without a public presence or advertising the name 鈥� there is no risk of taking advantage of your client鈥檚 reputation

as set out in the application, AXA is one of the world鈥檚 leading and most renowned insurance, asset management and financial companies that has over 160,000 employees with 108 million customers and presence in 57 countries. For the year ending Dec 2020, it had EUR 97bn in revenues and a market capitalisation of EUR54 billion. AKSA Holdings is a limited liability company with GBP100 paid up share capital to two shareholders (husband and wife) registered at a semi-detached residential house in Brierfield (a small village town in North of England). It is highly unlikely that anyone would confuse the two entities

also set out in the application is the strength of the AXA brand, its name and specifically its spelling, the logo, its activities are very well known in the UK. With such distinct branding and awareness, we put forward that there would be no confusion between the two entities

a simple google search for AKSA Holdings Limited does not bring up the applicant AXA. On the contrary, the first page provides links to a number of company database websites that set out the incorporation details of 2 director business registered at a residential address. Further on the first 5 pages of results, you get the following names Aksa International UK Ltd, Aksa Power Generation, Aksa Enerji, Aksa Group, Aksa Solutions Development Company Services, Aksa Global Ltd, Aksa Resources Pte. Simiarily, a google search for AXA does not return any results for AKSA Holdings Limited

It should be noted that the two directors are myself, Anjam Jalal and my wife Saima Jalal. I am an ICAEW ACA qualified accountant with over 15 years of experience. I currently work as an Associate Director in the Enforcement department at the Dubai Financial Services Authority (DFSA) in United Arab Emirates. DFSA is the regulator for the Dubai International Financial Centre. I was previously a director at Deloitte working in their Forensic Investigation and Dispute department and was a Certified Fraud Examiner. My wife is also an ICAEW ACA qualified accountant and is a Partner at Deloitte. Given our background, accreditations, and current roles, I hope the tribunal can appreciate that we would not take risks such as attempting to take advantage of another company鈥檚 goodwill.

26. Attached to the Form CNA2 is (i) a copy of a birth certificate (dated 8 February 2021) which indicates that on 2 February 2021 鈥淎mina Aqsa Anjam JALAL鈥� was born and that Anjam and Saima Razia Aslam JALAL are the parents, and (ii) a page from a passport issued on 18 February 2021 containing, inter alia, the name 鈥淎mina Aqsa Anjam JALAL鈥�.

27. That concludes our summary of the evidence filed to the extent we consider necessary.

Question 4

Decision

Accepted Answer

28. 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鈥檚 name suggesting a connection between the applicant and the primary respondent. If this burden is fulfilled, it is then necessary to consider if the primary respondent can rely upon defences under section 69(4) of the Act.

Question 5

Does the applicant have the necessary goodwill/reputation?

Accepted Answer

29. The relevant date is the date of incorporation of the primary respondent which, in this case, is 18 February 2021. Section 69(7) of the Act defines goodwill as a 鈥渞eputation of any description鈥�. Consequently, in the terms of the Act it is not limited to Lord Macnaghten鈥檚 classic definition in IRC v Muller & Co鈥檚 Margarine 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.

30. Earlier in this decision, we noted the conclusions reached by the Adjudicators in application nos. 1340 and 3208. We further note that those applications related to challenged companies which were incorporated in November 2016 and May 2020 respectively. Not only has the primary respondent not denied the applicant has the goodwill it claims in these proceedings, in its Form CNA2, it specifically comments upon the applicant鈥檚 trading activities.

31. On the basis of the evidence provided in the witness statements of Mr Sansom and Ms Wilkinson, we are satisfied that at the relevant date in these proceedings, the applicant鈥檚 business had the necessary goodwill in the names and services identified by the Adjudicators in paragraph 25 of application no 1340 and endorsed by the Adjudicators in application no. 3208.

Question 6

Similarity of names

Accepted Answer

32. The other initial burden facing the applicant is that the company name is sufficiently similar to AXA to suggest a connection between the company and the applicant. The company鈥檚 name is 鈥淎KSA HOLDINGS LIMITED.鈥� Unsurprisingly, the applicant鈥檚 submissions in these proceedings are very similar to those in application no. 3208. For example, the applicant states:

As a company designation is a necessity for a registered company, the 鈥淟IMITED鈥� element of the primary respondent鈥檚 name does not have a bearing in the determination of similarity of the names as it simply indicates the corporate status of the company. The word 鈥淟IMITED鈥� should therefore be ignored for the purpose of comparison. Further, the word HOLDINGS鈥annot be considered significant, since it merely indicates that the company is a holding company. The word HOLDINGS鈥ill merely lead to a perception that AKSA HOLDINGS is a holding company within the applicant鈥檚 group of companies.

33. As noted above, the applicant uses the word AXA in both logo and word formats. The applicant submits that the word 鈥淟IMITED鈥� in the primary respondent鈥檚 name merely indicates the legal status of the entity concerned, we agree. As a consequence, it is non-distinctive and, therefore, does nothing to distinguish between the primary respondent鈥檚 name and the name relied upon by the applicant. As the word 鈥淗OLDINGS鈥� would be attributed the meaning the applicant suggests, it is descriptive in nature and, as a consequence, once again, insufficient to distinguish between the competing names . Put simply, the word 鈥淎KSA鈥� is the only distinctive part of the primary respondent鈥檚 name.

34. The applicant submits that 鈥淎KSA鈥� and 鈥淎XA鈥� are visually highly similar, aurally identical and neither word will form a concept in the mind of the public.

35. We note that in application no. 3208, in relation to the name 鈥淎KSA LONDON LTD鈥�, the Adjudicators stated:

36. Notwithstanding that both the word 鈥淎XA鈥� and 鈥淎KSA鈥� begin and end with the letter 鈥淎鈥�, in such short words i.e. three letters as opposed to four, even a one letter difference can be significant. Consequently, even if one compares the word 鈥淎KSA鈥� with the word only form 鈥淎XA鈥�, in our view, there is only a low degree of visual similarity.

37. In relation to aural similarity, the applicant states:

The word AKSA is phonetically identical to AXA. The words both consist of two syllables. The only way to pronounce the word AKSA is to pronounce the letters 鈥橝KS鈥� and 鈥楢X鈥� as 鈥榓xe鈥� so that with the additional letter 鈥楢鈥� the words are identical. There is in fact no way to distinguish the words AKSA and AXA phonetically.

38. Insofar as the words 鈥淎KSA鈥� and 鈥淎XA鈥� are concerned, we agree with the applicant鈥檚 submissions. However, even though in our view highly unlikely, even if the totality of the primary respondent鈥檚 name was verbalised, given our comments above about the words 鈥淟ONDON鈥� and 鈥淟TD鈥� and as the word 鈥淎KSA鈥� would be verbalised first, it would still result in a high degree of aural similarity.

39. In its submissions, the applicant states:

Conceptually, neither word has a meaning in English and is unlikely to form any concrete concept in the mind of the public. Therefore, the names cannot be distinguished from a conceptual perspective.

40. Insofar as the words 鈥淎XA鈥� and 鈥淎KSA鈥� are concerned, we agree. Although the words 鈥淟ONDON鈥� and 鈥淟TD鈥� will convey concrete concepts to the public, as those concepts are descriptive/non-distinctive, it does not assist the primary respondent.

41. In the course of trade, the public may encounter a company鈥檚 name in printed format on, for example, its signage on physical premises, on its website, in its promotional material and on company materials such as order forms and bills. These are typical examples of when the visual aspect of name of a company will be important. However, the public will also refer to a company鈥檚 name verbally, when, for example, making enquiries or in word-of-mouth recommendations. It is, therefore, clear, that a company鈥檚 name is intended to appeal to both the eye and the ear. Proceeding on that basis and notwithstanding what we regard as the low degree of visual similarity, the at least high degree of aural similarity (and, more likely, aural identity) combined with the lack of any concept which may assist the public in distinguishing between the competing names is, in our view, likely to lead the public to make a connection between the competing names. We note that in its submissions, the applicant submits that it has 鈥渕ade out a case under section 69(1)(b) of the Act鈥�; we agree.鈥漒u003c/p>

42. Given the conclusions we have reached in relation to the words 鈥淟IMITED鈥� and 鈥淗OLDINGS鈥�, we too find that the similarity between the competing names is likely to lead the public to make a connection between them.

43. As the ground specified in subsection 69(1)(b) is established, the onus switches to the primary respondent to establish whether it can rely on the defences pleaded in its amended Notice of defence.

Question 7

Defences

Accepted Answer

44. The primary respondent is relying upon the following:

Section 69(4)(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;

45. In its written submissions, the applicant states:

鈥he Respondent has provided no evidence to demonstrate that the company is operating under the name or that it has incurred substantial start-up costs in preparation or that the company was formerly operating and is now dormant. We submit, therefore, that this defence cannot be relied upon as it has not been substantiated.

46. The relevant date for the assessment is the date of the applicant鈥檚 application i.e. 12 March 2021. The operating defence does not represent a high hurdle, it simply requires that the primary respondent has, before the relevant date, engaged in some form of external commercial activity which shows that the company is operating under the name. However, it is clear from the following comments contained in the Notice of defence:

The purpose of the company is that it would hold our personal investments鈥nWe do not intend to advertise or market the company to the public in any form. We do not have and do not plan to have a logo, a website or have any presence on any social media or business platforms. It is simply a convenient vehicle to hold our investments and simplify our tax affairs. Without a public presence or advertising the name 鈥� there is no risk of taking advantage of your client鈥檚 reputation, that section 69(4)(b)(i) is not one upon which the primary respondent can rely. Similarly, there is no evidence to suggest that section 69(4)(b)(ii) is applicable. As the primary respondent鈥檚 status on the Companies House website is described as 鈥淎ctive鈥�, section 69(4)(b)(iii) is not relevant. As a consequence, we dismiss the defences based upon section 69(4)(b) of the Act.

Section 69(4)(d) - that the name was adopted in good faith;

47. In its Form CNA2 (reproduced again here for convenience), the primary respondent stated:

We believe that exemption 4(d) of Section 69 of the Companies Act 2006, namely that the name was adopted in good faith should apply in this case. The good faith is demonstrated by the fact that the inspiration for the company name came from our daughter鈥檚 name, Amina Aqsa, who was born on 2 February 2021. The company was registered only 2 weeks after on 18 February 2021. We attach a copy of the birth certificate to this defence for your reference. We selected AKSA Holdings Limited to sound phonetically the same as her name, albeit with slightly different spelling. The applicant鈥檚 company or any similarities to the name AXA was not even a consideration in the name selection process. We hope this satisfies the Tribunal that the intention behind the company name had nothing to do with taking advantage of AXA 鈥榮 goodwill and it was adopted in good faith.

48. In its written submissions, the applicant states:

鈥n this respect, the evidence submitted in support of the good faith defence is a copy of the birth certificate of the daughter of the Respondent鈥檚 director which was attached to the CNA2 form. This has not been submitted by way of a witness statement of statutory declaration. It is claimed that the name AKSA was chosen to sound like AQSA. There is no explanation as to why the Respondent wanted to name the company after the director鈥檚 daughter nor any documentary evidence to support this. Furthermore, there is no explanation or documentary evidence as to why the name AKSA was chosen rather than AQSA, or AMINA. This point is of particular relevance because the word AKSA is far closer visually to AXA than the word AQSA is to AXA and the Respondent has acknowledged the reputation in AXA. In any case, the statements made in the form CNA2 have not been made by a witness statement or sworn declaration and no statement of truth accompanies the statements.

It is the Applicant鈥檚 contention that the name AKSA was adopted to take advantage of the substantial reputation in AXA and is visually closer to AXA than AQSA or AMINA, for example. It is our submission that the statements made by the Respondent fall short of the requirements to show that the name was adopted in good faith鈥u003c/p>

49. It is evident from the wording of s.69(4) of the Act that the onus is on the primary respondent to show that the contested name was adopted in good faith. The relevant date for this defence is the date on which the company name was registered i.e. 18 February 2021.

50. The following principles in relation to good faith can be extracted from the judgments of the Privy Council in Barlow Clowes v Eurotrust International Ltd [2005] UKPC 37 and the Court of Appeal in England and Wales in Niru Battery Manufacturing v Milestone Trading Ltd [2003] EWCA Civ 1446:

(i) good faith is not displayed by a failure to act in a commercially acceptable way or by certain kinds of sharp practice which fall short of outright dishonesty or by dishonesty itself 鈥� see Niru Battery at para 164

(ii) there is a combined subjective/objective approach to the honesty of a party鈥檚 behaviour. This involves (i) a consideration of what the party knew at the time of a transaction and (ii) how that party鈥檚 action would be viewed by applying normally acceptable standards of commercial behaviour - see Barlow Clowes paras 15鈥�18, 28鈥�32

51. Our task is: (a) to determine what the primary respondent/Mr & Mrs Jalal knew at the time the contested name was adopted, and (b) whether the adoption of the name would be viewed as commercially acceptable behaviour when judged objectively. This means how reasonable men and women in the field would view the primary respondent鈥檚/Mr & Mrs Jalal鈥檚 behaviour (i.e. not simply how the primary respondent/Mr & Mrs Jalal viewed its own/their own actions).

52. Although it is true that the primary respondent has not filed the information upon which it relies in, for example, the form of a witness statement, for the reasons outlined in paragraph 9, we shall, nonetheless, treat it as evidence. Insofar as point (a) above is concerned, the evidence shows that 鈥淎mina Aqsa Anjam Jalal鈥�, was born on 2 February 2021 and that Mr and Mrs Jalal are the parents. We also note that the company was registered on 18 February 2021. Given the comments contained in the Form CNA2, it is, we think, a reasonable inference that at the date the primary respondent was incorporated, Mr & Mrs Jalal would have been aware of the applicant and its commercial activities. That inference is further supported by Mr & Mrs Jalal鈥檚 involvement in the financial services sector.

53. Armed with that state of knowledge, we must now decide whether the adoption of the name would be viewed as commercially acceptable behaviour when judged objectively from the standpoint mentioned above. The birth certificate and page from the passport provided do no more than show the actual name of Mr & Mrs Jalal鈥檚 daughter. As the applicant points out, there is, however, no explanation as to why Mr & Mrs Jalal wanted to name the company after their daughter. However, even if such evidence had been provided, much more importantly, in our view, there is no explanation as to why rather than naming the company using the correct spelling of one of their daughter鈥檚 given names i.e. 鈥淎mina鈥�, 鈥淎qsa鈥� or 鈥淎njam鈥�, Mr & Mrs Jalal elected instead to select a name that sounded phonetically the same as 鈥淎qsa鈥�, albeit with a different spelling. The evidence provided falls a long way short of explaining how Mr & Mrs Jalal got from one of their daughter鈥檚 given names, to the name of the company they decided to register.

54. As individuals who had been engaged in the financial services sector for what appears to be many years, it should, in our view, have occurred to Mr & Mrs Jalal that as the words 鈥淗OLDINGS鈥� and 鈥淟IMITED鈥� were descriptive/non-distinctive in nature, the distinctive part of the company name they were about to incorporate i.e. 鈥淎KSA鈥� was phonetically identical to, to use Mr Jalal鈥檚 words, 鈥渙ne of the world鈥檚 leading and most renowned insurance, asset management and financial companies鈥︹€�.

55. Faced with that factual matrix, we have concluded that a reasonable person in the field would view the primary respondent鈥檚/Mr & Mrs Jalal鈥檚 behaviour as falling below normally accepted standards of commercial behaviour and, as a consequence, the defence based upon section 69(4)(d) of the Act fails accordingly.

Section 69(4)(e) - that the interests of the applicant are not adversely affected to any significant extent;

56. In its Form CNA2 (reproduced again here for convenience), the primary respondent stated:

That purpose of the company is that it would hold our personal investments, principally in residential and commercial property (as demonstrated by current project under consideration). There is no overlap in the nature of the activities between the two.

We do not intend to advertise or market the company to the public in any form. We do not have and do not plan to have a logo, a website or have any presence on any social media or business platforms. It is simply a convenient vehicle to hold our investments and simplify our tax affairs. Without a public presence or advertising the name 鈥� there is no risk of taking advantage of your client鈥檚 reputation.

As set out in the application, AXA is one of the world鈥檚 leading and most renowned insurance, asset management and financial companies that has over 160,000 employees with 108 million customers and presence in 57 countries. For the year ending Dec 2020, it had EUR 97bn in revenues and a market capitalisation of EUR54 billion. AKSA Holdings is a limited liability company with GBP100 paid up share capital to two shareholders (husband and wife) registered at a semi-detached residential house in Brierfield (a small village town in North of England). It is highly unlikely that anyone would confuse the two entities.

Also set out in the application is the strength of the AXA brand, its name and specifically its spelling, the logo, its activities are very well known in the UK. With such distinct branding and awareness, we put forward that there would be no confusion between the two entities.

A simple google search for AKSA Holdings Limited does not bring up the applicant AXA. On the contrary, the first page provides links to a number of company database websites that set out the incorporation details of 2 director business registered at a residential address. Further on the first 5 pages of results, you get the following names Aksa International UK Ltd, Aksa Power Generation, Aksa Enerji, Aksa Group, Aksa Solutions Development Company Services, Aksa Global Ltd, Aksa Resources Pte. Simiarily, a google search for AXA does not return any results for AKSA Holdings Limited.

57. In its written submissions, the applicant states:

鈥he Respondent claims that the purpose of the company is to hold the directors鈥� personal investments principally in residential and commercial property. However, we submit that the pleaded defence under s. 69(4)(e) of the Act should be rejected because (a) even if the respondent is intends to use the name to hold personal investments, there is nothing to prevent it from changing or expanding its business in future (or selling it to someone who will trade in the Applicant鈥檚 commercial sector), and (b) the name AKSA is so similar AXA that there is a very real risk that the Respondent鈥檚 name could adversely affect the applicant to significant extent. For example, since the Applicant has no control over the activity or corporate filings of the Respondent, there is a disadvantage to the business interests and reputation of the Applicant. It is conceivable that the Respondent company could trade in the future under AKSA HOLDINGS for an insurance company this would lead to a tarnishing of the Applicant鈥檚 reputation in AXA.

58. To affect adversely the interests of the applicant to any significant extent, the company name must do more than just sit on the register at Companies House. The onus is on the primary respondent to show why its company name does not adversely affect the applicant鈥檚 interests to any significant extent. The onus is not on the applicant.

59. In this regard, Mr Jalal points to the following: (i) the primary respondent is being used as a vehicle to hold personal investments, (ii) there is, inter alia, no intention to advertise or market the company to the public in any form, (iii) the relative size of the two undertakings involved in the dispute, and (iv) a Google search for 鈥淎KSA Holdings Limited鈥� does not retrieve the word 鈥淎XA鈥�, but instead retrieves results relating to a number of other undertakings which incorporate the word 鈥淎ksa鈥� in their name.

60. Insofar as points (i) and (ii) are concerned, as the applicant points out, the primary respondent鈥檚 current intentions are not relevant, as its intentions may change over time. This may, as the applicant submits, include expanding its business in future (or selling the company to someone who may trade in another field, including the identical field in which the applicant operates and has goodwill). The fact that there is a disparity between the sizes of the competing undertakings is not a relevant consideration, nor is the fact that, inter alia, a Google search for 鈥淎KSA Holdings Limited鈥� does not retrieve the word AXA, but instead reveals that other undertakings contain 鈥淎KSA鈥� as the first word in their name. Such undertakings may, for example, no longer be extant or may be in other jurisdictions, see, for example, the reference to Aksa Resources Pte.

61. The applicant further submits that as it has 鈥渘o control over the activity or corporate filings of the primary respondent, there is a disadvantage to the business interests and reputation of the applicant鈥�. We note that these comments find an echo in Ewing v Buttercup Margarine Company, Limited, [1917] 2 Ch. 1 (COA), where Warrington L.J. stated that:

To induce the belief that my business is a branch of another man鈥檚 business may do that other man damage in various ways. The quality of goods I sell, the kind of business I do, the credit or otherwise which I enjoy are all things which may injure the other man who is assumed wrongly to be associated with me.

62. Although that comment was made in the context of trade mark proceedings, it is, in our view, equally applicable here. As the factors we have identified are, in our view, likely to affect the applicant鈥檚 interests to a significant extent, the defence based upon section 69(4)(e) of the Act also fails.

Question 8

Outcome

Accepted Answer

63. As we have dismissed all of the defences being relied upon, the application succeeds.

64. Therefore, in accordance with section 73(1) of the Act, we make the following order:

(a) AKSA HOLDINGS LIMITED shall change its name within one month of the date of this order to one that is not an offending name;

(b) AKSA HOLDINGS LIMITED shall:

(i) take such steps as are within its power to make, or facilitate the making, of that change;

(ii) not to cause or permit any steps to be taken calculated to result in another company being registered with a name that is an offending name.

65. In accordance with Section 73(3) of the Act, this order may be enforced in the same way as an order of the High Court or, in Scotland, the Court of Session.

66. In any event, if no such change is made within one month of the date of this order, we will determine a new company name as per section 73(4) of the Act and will give notice of that change under section 73(5) of the Act.

67. The primary respondent has a legal duty under Section 73(1)(b)(ii) of the Act not to cause or permit any steps to be taken calculated to result in another company being registered with an offending name; this includes the current company.

Question 9

Costs

Accepted Answer

68. As the applicant has been successful, it is, in principle, entitled to a contribution towards its costs, based upon the scale of costs published in paragraph 10.1 of the Practice Direction. In response to the question in the Form CNA1 which asked if it contacted the company prior to making its application, the applicant stated:

Yes. A letter was sent to the company on 24 February 2021 notifying the company of the Applicant鈥檚 reputation in the name AXA in the UK, and informing it that an application would be made before the Company Names Tribunal unless the name was changed to one that did not contain AKSA, AXA or similar. We requested a response by 11 March 2021. No response has been received to date.

69. In the Form CNA2, the primary respondent stated:

Firstly, the applicant stated in response to Q7 of the Form CNA 1- that they had wrote to us and had not received a response to date. A response similar to the points made below was sent to Keltie LLP on the 12 March 2021, the same day that the application was made. On 14 March 2021, Keltie LLP replied acknowledging receipt of our response and that they will consult with their client and revert back shortly. The response did not mention that an application to the Company Names Tribunal had already been made. Having not heard back for weeks, we assumed that the AXA had decided not to pursue the issue further and thus we proceeded to have AKSA Holdings Limited as a shareholder in a new residential construction build company. Therefore, a change in name will incur significant disturbance and delay to an on-going business venture. We only became aware that the application had been made in May 2021 on receipt of Form CNA 1 through the post.

70. From the above chronology one can see that the applicant set the primary respondent a deadline of 11 March 2021 to respond. The primary respondent did not, however, respond until the following day. Consequently, as no response was received by Keltie by the deadline set, on 12 March 2021, it filed an application to this Tribunal. While it is not clear why, in its letter to the primary respondent of 14 March 2021, Keltie did not advise the primary respondent that an application to this Tribunal had been filed, it is clear that the primary respondent鈥檚 late reply to Keltie which, Mr Jalal states was 鈥渟imilar to the points made [in the Form CNA2]鈥�, was not considered sufficient and it pursued its application accordingly. An application which has, of course, been successful. In those circumstances, we award costs to the applicant on the following basis:

Filing the application and reviewing the defence: 拢400
Fee for filing the application: 拢400
Filing evidence: 拢500
Fee for filing evidence: 拢150
Written submissions: 拢200

Total: 拢1650

71. We order AKSA HOLDINGS LIMITED to pay to AXA the sum of 拢1650 within 21 days of the expiry of the appeal period, or within 21 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 uphold the application; there is no right of appeal in relation to costs.

72. 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.

73. The company adjudicator must be advised if an appeal is lodged, so that implementation of the order is suspended.

Dated 22 April 2022

Christopher Bowen
Teresa Perks
Al Skilton
Company Names
Adjudicator

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