27. Names of companies Flashcards
- Names of companies
General overview
[27.01] The registrar’s powers to refuse a registration of a company under ss 12(5) and 20 extend to his refusal to accept a name for registration. The grounds for refusal are exclusively set out in s 27(1), although an applicant may appeal to the Minister to allow the registration of a name that breaches subsection (1). The appeal procedure is contained in subsections (2) and (2A).
Refusal to register name of company
[27.02] Subject to subsection (1B) or the consent of the Minister, the registrar must refuse to register a company’s name which, in the opinion of the registrar, falls within the following categories.
Undesirablename
[27.03] Undesirability in the context of s 27 does not include the likelihood of confusion of identity because an “undesirable” name is treated distinctly from a name that is identical or confusingly similar to the name of an existing company, corporation or business. Similarity in names is not itself a sufficient reason for the registrar to refuse to register a company’s proposed name. There must be something more which rendered that similarity undesirable such as the conspicuous form of financial detriment, which would be the obvious consequence if the companies involved shared a common field of activity: Drilex Systems Pte Ltd v Registrar of Companies & Anor [1993] 1 SLR(R) 513; [1993] SGCA 20, CA ; followed in Pestbusters Pte Ltd v Registrar of Companies & Anor [1996] 2 SLR(R) 1; [1996] SGHC 96, HC.
Identical to name of any other company, limited liability partnership, limited partnership or corporation or to any registered business name
[27.04] A writ of mandamus would be refused where the applicant proposed to challenge the registrar’s discretion not to register a name that was identical with that by which a company in existence is already registered, or so nearly resembling that name as to be calculated to deceive
Identical to a name reserved under subsection (12B) or subsection (12B) as applied by s 378(15), the relevant sections in the Business Names Registration Act 2014 (No 29 of 2014), the Limited Liability Partnerships Act (Cap 163A) or the Limited Partnerships Act (Cap 163B)
[27.05] An application to reserve a name of the proposed company under subsection (10) prevents any other person to reserve or use such a name for the period stated in subsection (12B), viz. if the registrar approves the application, a period of 60 days after the registrar notifies the applicant, or such further extension of 60 days, as the registrar allows; or if the registrar rejects the application, on the date on which the registrar notifies the applicant of his refusal.
Minister’s direction not to register
[27.06] The court upheld the Secretary of State for Trade and Industry’s direction issued under s 32(1) of the Companies Act 1985 (UK) requiring the “Association of Certified Public Accountants of Britain” to change its name on the ground that, by using the word “certified”, it was misleading and likely to cause harm to the public
Identical name to dissolved local and foreign companies and limited liability partnerships
[27.07] Subsection (1A) provides that, except with the consent of the Minister, the registrar shall refuse to register a company under a name which is identical to the name of a company that was dissolved. A company is dissolved when it is wound up voluntarily by its members or creditors, or by the courts, or struck off the register under s 344 or 344A. There are exceptions where the registrar may approve of the name: (a) where the company was wound up under Part X of the Act or where a foreign company goes into liquidation or is dissolved in its place of incorporation or origin under s 377(2) and a period of two years has passed after the date of dissolution; and (b) where the company was struck off the register under s 344 or 344A and a period of six years has passed after the date of dissolution. The same time frame applies, mutatis mutandis, to limited liability partnerships that were dissolved by winding up under s 30 of, and the Fifth Schedule to, the Limited Liability Partnerships Act (Cap 163A) and those struck off the register under s 38 of the same Act: s 27(1A)(d). For business names cancelled under s 22 of the Business Names Registration Act 2014 (Act 29 of 2014), at least one year has to elapse after the date of cancellation or cessation.
[27.08] Where a foreign company has lodged a notice under s 377(1) that it has ceased to have a place of business in Singapore or ceased to carry on business in Singapore, the registrar may, after the commencement of Act No 36 of 2014, register an identical name, if a period of at least three months has passed after the date of cessation. If the foreign company is struck off under s 377(8), (9) or (10), the registrar may register the name if a period of at least six years has passed from the date of striking off: s 27(1B)(a).
Identical name to limited partnerships
[27.09] Subsection 27(1A)(e) provides that the registrar shall refuse to register a name that is identical to the name of a limited partnership that was cancelled or dissolved under s 14(1) or 19(2) and (4) of the Limited Partnerships Act (Cap 163B) respectively unless a period of at least one year has passed after the date of cancellation or dissolution.
[27.10] Similarly, when a limited partnership has ceased to carry on business in Singapore in respect of which notice was lodged under s 19(1) of the Limited Partnerships Act (Cap 163B), the registrar may register an identical name if at least one year has passed after the date of cessation: s 27(1B)(b).
Undesirable or identical name registered, whether through inadvertence or otherwise
[27.11] If an undesirable or identical name is registered, or if a name is registered the use of which has been restrained by an injunction granted under the Trade Marks Act (Cap 332), the registrar may direct the company to change the name, and the company shall comply within six weeks or such longer period as the registrar may allow, unless the direction is annulled by the Minister: s 27(2).
[27.12] Any person may apply to the registrar to give directions in accordance with subsection (2). However, where the application is on the ground that the name so nearly resembles the name of another company, corporation or business name as to be likely to be mistaken for it, the aggrieved person must apply to the registrar within 12 months of the date of incorporation of the first-mentioned company: s 27(2A) and see Pestmasters Pte Ltd v Pestbusters Pte Ltd [1996] 3 SLR(R) 784; [1996] SGCA 73, CA , where the Court of Appeal held that the registrar’s notice of refusal to give directions under subsection (2) served as the date to calculate the time for appeal (28 days) to file the notice of motion as required by Order 55 r 3(2) and (4) of the Rules of Court which set out the procedure to appeal under s 12(6) (which has been repealed and substituted with a new provision).
Appeal to the Minister
[27.13] An appeal may be made to the Minister against the registrar’s decision under subsections (2) and (2A) by the aggrieved company respectively within 30 days after the registrar’s decision or refusal to give a direction. The Minister’s decision is final: s 27(5AA). However, an applicant company may apply to the High Court to direct the registrar to rectify any particular recorded in the register that is erroneous or defective under s 12B, which may arguably include a name that is undesirable or identical under the grounds stated in ss 27 and 28.
Reservation of name
- for new co n chg of name
- can appeal to minister on registrar’s decision n minister’s decision is final
[27.14] An application may be made to the registrar to reserve a name of an intended company or a name to which a company proposes to change its name: s 27(10). Under subsection (12), the application must be made in good faith, and the name is one that does not infringe subsections (1), (1A) and (1B). The registrar must reserve the name under the conditions in subsection (12B). An appeal may lie to the Minister against the registrar’s decision under subsections (10) and (12B): s 27(12C). The Minister’s decision is final.
Deletion of subsection (14)
[27.15] The deletion of the previous subsection (14), which provided that whilst the name was reserved by the registrar no company shall be registered under the Act under the reserved name, is significant. This means that the applicant of a name does not have any advantage by submitting a reservation of a name. In the meantime, a company with an identical name may also be registered. It is a race against time to have the name registered. This may be significant in the case of the protection of “famous” names as no company can steal a march through the reservation of names.
Protection of “famous” names
[27.16] The registration of names of companies is linked to the registration of trade marks or business marks via s 27(2)(c). The registrar is not the protector of “famous” names and it is left to the owner of a famous trade or business mark to seek an injunction under s 27(2)(c).
