Chapter 6 - Registration of company names

Question 1

When does the Companies Act restrict a company name?

Answer 1

Only as far as it is necessary to:
1. protect the public from misleading names that falsely imply an association that does not exist.

2. protect the interests of the owners of names and other forms of intellectual property from other persons passing themselves off as such owners or coat-tailing on the owners’ reputation and good standing.
3. protect the public from names that would fall within the ambit of expression that does not enjoy constitutional protection because of their harmful or other negative nature.

To avoid deception of the public, the name of a company may not:

4. be the same as the name of another company, an external company, or a close corporation or cooperative.
5. be confusingly similar to a name, trademark, word, or expression as described above.
6. Give the false impression that the company is associated with the government or with a particular person or government official.

Also note:
7. The Companies Act does not make provision for the registration of a shortened or translated name.

8. A name reservation in a foreign language must be accompanied by by a certified translation and certificate of translation.
9. In terms of the Consumer Protection Act, members of the public are required to register their business/ trading name/sole proprietorship/partnership name with the commission.
10. Where, according to the Commission, there is a possibility that the name is similar to the name of another company or another business undertaking or trademark, or that the name gives the impression that there is a connection between the company that is applying and another entity or state organ, the Commission may compel the applicant to inform parties that may be interested by serving them with a copy of the application and name reservation. If the company’s name is to be associated with another existing business, the Commission will require proof from the applicant company that the associated company was made aware before registration that a similar name would accordingly be allowed.
11. The Companies Act also allows any person who has an interest in the name of a company to apply to the Companies Tribunal for it to determine whether or not the name is in accordance with the requirements of the Companies Act.

Question 2

What are the effects of a name reservation?

Answer 2

A name reservation is valid for 6 months. It is possible for an extension of a name reservation for an additional 60 business days by lodging CoR9.2 and paying a filing fee. A name may be reserved for use at a later stage, used for a newly incorporated company, or used as a replacement for an existing name of a company. Someone who has applied for a reservation of a name may transfer the reserved name to another person by lodging a form (CoR11.1).