Botanica Agriculture and Extraction Limited v Botanica Limited

On an objection to a registered company name under Companies Act 2006, the applicant’s goodwill or reputation under section 69(1) should ordinarily be assessed at the date of the application, not automatically at the date of incorporation. The objection under section 69(1) and the respondent’s defence under section 69(4) involve separate issues and separate burdens of proof. The tribunal must first decide whether the names are the same or sufficiently similar, then determine whether the applicant has established the statutory objection and whether the respondent has proved its defence. A respondent’s offer to sell the company may support an inference under section 69(5), although that ground may not alone determine the appeal. An appeal may be remitted where factual questions remain unresolved.

Botanica Agriculture and Extraction Ltd appealed against the Company Names Tribunal’s decision, published on 9 November 2021, dismissing its objection to the registration of Botanica Ltd. The Appellant relied on goodwill or reputation in the name Botanica and alleged that the Respondent’s name contravened section 69 of the Companies Act 2006. It also challenged the Tribunal’s treatment of the statutory defence, alleged bias, relied on additional evidence and referred to a without-prejudice offer to sell the company.

The central issues were the correct date for assessing goodwill under section 69(1)(a), the relationship between the objection and the defence under section 69(4), and whether the appeal should be determined by the court or remitted to the Tribunal.

1. Appeal allowed and matter remitted. The Tribunal had erred in law by failing to consider separately whether the Appellant had established the objection under section 69(1) and whether the Respondent had established its defence under section 69(4).
2. The Tribunal had also applied the wrong relevant date for section 69(1)(a). The appropriate date should be treated as the date of the application, 29 September 2020, rather than automatically the date of the Respondent’s incorporation, unless the parties contested that conclusion before the Tribunal. The approach in Zurich Insurance Co v Zurich Investments Ltd [2011] RPC 6 and MB Inspection Ltd v Hi-Rope Ltd [2010] RPC 18 supported that analysis.
3. The Tribunal was directed to decide first whether Botanica Limited was the same name as Botanica Agriculture and Extraction Limited. If so, it was then to determine whether the Appellant had proved sufficient goodwill or reputation at the relevant date. The statutory defence would arise only thereafter, with the burden on the Respondent.
4. The court accepted the established broad conception of goodwill adopted from IRC v Muller & Co’s Margarine Ltd [1901] AC 217, including the benefit and advantage of a business’s good name, reputation and connection. Goodwill of more than a trivial nature is capable of protection.
5. The Respondent’s offer to sell the company could support an inference that its purpose in registering the name was to obtain money under section 69(5), but that ground alone would not have justified allowing the appeal. It was nevertheless an additional reason for remitting the matter to a different Tribunal. The Respondent could argue privilege and adduce evidence in answer.
6. The Appellant could rely on its existing trade marks as evidence of goodwill even though they were registered shortly after the application. The court declined to determine all factual issues itself and therefore remitted the application for reconsideration.
7. The Tribunal had no power to award damages. Any damages claim could not be granted by the Tribunal and was not determined on the appeal.

• High Court (Chancery Division): appeal from the Company Names Tribunal allowed; the application was remitted to a different Tribunal for determination in accordance with the judgment.