Decision

Decision on Argyle Financial Services & Planning Limited

Published 1 April 2019

Companies Act 2006

In the matter of application No. 1537 by Argyle Consulting Limited for a change to the company name of Argyle Financial Services & Planning Limited, a company incorporated in Scotland under number SC519551

Background and pleadings

1. The company name ARGYLE FINANCIAL SERVICES & PLANNING LIMITED (바카라 사이트渢he primary respondent바카라 사이트�) has been registered since incorporation on 5 November 2015 under number SC519551.

2. By an application filed on 7 August 2017, Argyle Consulting Limited (바카라 사이트渢he applicant바카라 사이트�) applied under section 69(1) of the Companies Act 2006 (바카라 사이트渢he Act바카라 사이트�) for the primary respondent바카라 사이트檚 name to be changed.

3. The applicant states that the name ARGYLE is associated with it and it is the subject of a UK registered trade mark for financial services (number 2465755). The applicant claims:

바카라 사이트淎 trade mark registration in the UK provides the owner with a monopoly in the name and the ability to prevent third parties using identical or confusingly similar names in relation to identical or confusingly similar goods or services, whether as a trade mark, company name or domain name. The provision of financial services under the company and the trading name of Argyle Financial Services & Planning Ltd, of which the only distinctive element is identical to the registered trade mark, is a confusingly similar name.바카라 사이트�

4. We will come back to the relevance of the trade mark registration later in this decision.

5. The applicant claims that it has traded under the name ARGYLE since 1997 as independent financial advisors and has acquired a significant reputation. It is authorised and regulated by the Financial Conduct Authority. The applicant claims that it is ranked in the top 100 advisory firms in the UK and is in the top five in Scotland. It states that the primary respondent is located less than 500 yards away from the applicant바카라 사이트檚 office address and people will assume that it is a related or associated company. Such a belief could result in dilution of the name associated with the applicant, ARGYLE; damage to the applicant바카라 사이트檚 reputation if the primary respondent offers poor service or advice; and loss of customers. The applicant also claims that the registration of the contested company name enables a third party to take advantage of the applicant바카라 사이트檚 reputation. Attached to the application form is a copy of the cease and desist letter which the applicant sent to the primary respondent on 28 April 2017. We note that this letter includes the following:

바카라 사이트淚t has come to our Client바카라 사이트檚 attention that you are supplying services under the name ARGYLE and/or ARGYLE FINANCIAL SERVICES & PLANNING, that you have a business address listed in West Regent Street, Glasgow and are offering identical/similar services. As the dominant and distinctive element of ARGYLE FINANCIAL SERVICES & PLANNING is the word ARGYLE, and FINANCIAL SERVICES & PLANNING are descriptive words, this is supply of services under the identical name and therefore infringes our Client바카라 사이트檚 trade mark registration.바카라 사이트�

6. The primary respondent filed a notice of defence and counterstatement, initially on the basis that the interests of the applicant are not adversely affected to any significant extent. Following a case management conference on 18 July 2018, the counterstatement was amended to include, in addition, a defence that the primary respondent is operating under the name, or is proposing to do so and has incurred substantial start-up costs in preparation, or was formerly operating under the name and is now dormant.

7. In its first counterstatement, the primary respondent states that the average consumer does not use its services. It states that it has a single source of customers from Creditfix Limited (a personal insolvency business). Its clients have debt issues and are in an Individual Voluntary Arrangement or Protective Trust Deed. 90% of its clients do not own their own home and rent property. The primary respondent states it only offers insurance and is not involved in mortgages, investments or pensions. Consumers do not visit the company바카라 사이트檚 premises, and the company does not have street-facing signage. It has a secured entrance on the second floor of an office townhouse, with no banners or other marketing material showing from the building. The primary respondent does not have a website and does not advertise. The primary respondent also states that Argyle is a generic name and is a modification of the area of Argyll, in Scotland. The amended counterstatement did not contain this information, although the majority of it was included in the primary respondent바카라 사이트檚 evidence, which we summarise later in this decision.

8. Sean Norris, the primary respondent바카라 사이트檚 director, was joined to the proceedings as a co-respondent. Both sides filed evidence. The applicant filed submissions in response to the amended defence. Both sides filed written submissions in lieu of a hearing, having elected to have a decision made from the papers. The applicant is represented by Murgitroyd & Company, and the primary respondent by Dallas McMillan Solicitors. We make this decision having carefully considered all the papers.

The applicant바카라 사이트檚 evidence

9. The applicant has filed evidence from Eleanor Coates and Stuart Dunbar. Ms Coates is a trade mark attorney with the applicant바카라 사이트檚 professional representatives, Murgitroyd & Company. Mr Dunbar is the applicant바카라 사이트檚 Managing Director. Ms Coates바카라 사이트� evidence has been filed largely to explain the perceived relevance of the fact that the applicant owns a trade mark registration for ARGYLE for financial services. Section 69(1) of the Act provides that the applicant must have a reputation or goodwill in the name relied upon. Trade mark registrations may sit on the register unused. The mere fact of a trade mark registration does not prove that the requirements of section 69(1) are satisfied. We will, therefore, not summarise Ms Coates바카라 사이트� evidence.

10. Mr Dunbar바카라 사이트檚 witness statement is dated 19 December 2017. Mr Dunbar has been the applicant바카라 사이트檚 Managing Director for 11 years, and was one of its founding directors in 1997. Mr Dunbar states that, since 1997, the applicant has provided independent financial advice to individuals, companies, trustees and charities throughout the UK. The relevant date for proving goodwill or reputation is 5 November 2015, which is the date on which the primary respondent was incorporated with the contested company name. Some of Mr Dunbar바카라 사이트檚 evidence post-dates that date, such as Exhibit SD3 which is an extract from the financial Times Strategic Insight Poll from 2016 showing the applicant as ranked 97th out of the top 100 Financial Advisors in the UK. Exhibit SD4 comprises financial press reports about the applicant바카라 사이트檚 business from 2013, which report that the applicant has expanded its offices in Aberdeen and Glasgow to include one in Edinburgh, leading to assets under advice to more than 拢650 million. A similar report from June 2015 reports that that figure had risen to 拢745 million. The exhibits show the applicant being referred to as Argyle Consulting and as, simply, Argyle.

11 Mr Dunbar states that the applicant advertises in selected publications and sponsors Glasgow Warriors Rugby Club. It has a website and sends out quarterly newsletters. Exhibits SD5, SD6 and SD7 comprise examples of these, although we note that they are undated save for the date on which they were printed for inclusion in the applicant바카라 사이트檚 evidence. We infer that the evidence post-dates 5 November 2015.

12. Mr Dunbar highlights two occurrences which he states illustrate that confusion has happened. He states that documents for the primary respondent바카라 사이트檚 directors were sent by the Tribunal to Allan Martin (a director at the time) at his address listed on his director details for the company. The address was McLay, McAlister & McGibbon LLP, a firm of accountants. The correspondence was given to John McCormack, an associate director of the applicant by one of the accountancy firm바카라 사이트檚 partners (Exhibit SD9 refers). Mr Dunbar also describes how, on 13 November 2017, he received an email from a client querying if the applicant was associated with Credit Fix, the entity which the primary respondent had stated in its (first) defence as being its single source of customers. The email is shown at Exhibit SD10.

The primary respondent바카라 사이트檚 evidence

13. The primary respondent바카라 사이트檚 evidence comes from Sean Norris, its director. He has provided a witness statement which is signed but undated. Under the rules of the Tribunal, evidence can only be filed if it is accompanied by the fee-bearing form, CNA 3.The primary respondent filed this form on 17 August 2018 and it is dated 16 August 2018. The form states that the evidence accompanying the form is a witness statement by Sean Norris, with 8 appendices. This matches the evidence before us. We will, therefore, regard the witness statement as being dated 16 August 2018.

14. Mr Norris states that he was appointed as director of the primary respondent on 20 June 2016 and that the company commenced trading in or around January 2017, having been incorporated on 5 November 2015. Mr Norris states that the company engaged the service of McLay, McAlister & McGibbon, Chartered Accountants, to assist in relation to the preparation of company accounts, payroll services and to provide support in relation to the Financial Conduct Authority (바카라 사이트淔CA바카라 사이트�). A copy of a letter from the accountants dated 19 July 2018 is shown as Appendix 3. The letter is addressed to the primary respondent바카라 사이트檚 representative in these proceedings and says:

바카라 사이트淒ear Sirs,

Argyle Financial Services & Planning Ltd

We act on the company바카라 사이트檚 behalf in connection with the preparation of accounts, payroll services and provide support in Financial Conduct Authority reporting. We can confirm that the clients have been trading since January 2017.

If we can be of further assistance then please contact our Mr McCaw.바카라 사이트�

15. Appendix 4 comprises a copy of an insurance schedule issued by Collegiate Claims, and underwritten by AXA Insurance, identifying the primary respondent as 바카라 사이트渢he Insured바카라 사이트�. The certificate number is given at the top of the schedule. The period of insurance was 8 August 2016 to 7 August 2017. The proposal form was dated 19 November 2015.

16. Mr Norris explains that in accordance with The Financial Services and Markets Act 2000, the primary respondent was obliged to obtain 바카라 사이트榩ermissions바카라 사이트� from the FCA. Appendix 5 comprises a copy of a 바카라 사이트淪cope of Permission Notice바카라 사이트� issued to the primary respondent by the FCA on 8 August 2016. The primary respondent바카라 사이트檚 business activity is described as credit broking and the permission is for the regulated activities of debt adjusting, debt counselling, advising on investments (except on Pension Transfers and Pension Opt-Outs), arranging investment deals, and making arrangements with a view to transactions in investments. The investments are all specified as non-investment insurance contracts.

17. Appendix 6 comprises a copy of a Bank of Scotland bank statement in the primary respondent바카라 사이트檚 name, dated 29 July 2016. This statement records that 拢6000 was paid into the account, but nothing was paid out. Appendix 7 comprises a letter issued to Mr Norris and the primary respondent 바카라 사이트楥ompliance First바카라 사이트�, dated 19 July 2018. The letter is from Compliance First바카라 사이트檚 Head of Technical, Aileen Lynch, and says:

바카라 사이트淒ear Sean

Compliance First Services

I can confirm that the Argyle Financial Services and Planning Ltd signed for services from Compliance First on 23rd November 2015, I have attached a copy of the Letter of Engagement, which confirms the services that are provided.

The Firm became authorised and is on the FCA Register from 8th August 2016.바카라 사이트�

18. A copy of a client report from Compliance First to the primary respondent, dated 22 December 2016, is exhibited at Appendix 8. The report confirms that the purpose of meeting with Compliance First is to review the primary respondent바카라 사이트檚 processes, procedures and adherence to the Financial Services and Markets Act 2000, the regulations thereto and subsequent amendments. The report shows that regular meetings were scheduled for 28 March 2017, 26 June 2017 and 29 November 2017. It states on the first page that where relevant, Compliance First has provided recommendations for enhancing and improving the primary respondent바카라 사이트檚 current practices. The report notes that the primary respondent is able to undertake insurance mediation and that, at that date, there were four individuals working for the primary respondent who were considered as 바카라 사이트榓pproved persons바카라 사이트�, and nine employees in total.The primary respondent is reported as being an agent acting for the following 바카라 사이트榩rincipals: CMD Today Limited and Creditfix Limited, effective from 2 November 2016 and 21 December 2016, respectively. The primary respondent is not authorised to hold client money. The report states that the primary respondent held a data protection licence, to be renewed on 24 August 2017, and employer바카라 사이트檚 liability insurance, to be renewed on 28 March 2017. The following documents were also completed for review by the primary respondent: compliance plan, training and competence plan, conflicts of interest policy, vulnerable persons policy and ethical policy. The report states that Mr Norris had attended a Supervisors Workshop and was aware of the requirements necessary to fulfil the regulatory aspects of the role; in addition, it was reported that the primary respondent regularly held administrative staff meetings and that these were all clearly documented. Continuing Professional Development (CPD) was set at 35 hours per annum per advisor. The end of the report says:

바카라 사이트淒uring the visit, Sean showed me the layout of the new premises which now means the Firm is operating in its own area where no-one else from other operations within the building has access to the Firm바카라 사이트檚 area. This should enable the Firm to comply with all aspects of data security that would not have been possible in the previous premises.바카라 사이트�

19. Mr Norris states that the primary respondent has openly and actively traded since January 2017. Further, he states that the interests of the applicant are not adversely affected to any significant extent for the following reasons:

(i) All of the primary respondent바카라 사이트檚 clients are singularly sourced through Credit Fix.

(ii) All of the primary respondent바카라 사이트檚 clients are vulnerable clients going through either an IVA or trust deed.

(iii) Approximately 95% of the primary respondent바카라 사이트檚 clients are from England and have no connection to Scotland.

(iv) The primary respondent does not advertise for clients and does not have a website seeking to promote their business because their clients are singularly sourced through Credit Fix.

(v) The primary respondent does not compete with the applicant. Approximately 90% of the primary respondent바카라 사이트檚 clients do not own their own home and rent property.

(vi) The primary respondent provides an entirely different offering to that of the applicant. It does not compete in the same offering or provide the same offering as or indeed similar offering to the applicant.

Decision

20. Section 69 of the Act states:

바카라 사이트�(1) A person (바카라 사이트渢he applicant바카라 사이트�) may object to a company바카라 사이트檚 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 those 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 바카라 사이트済oodwill바카라 사이트� includes reputation of any description.바카라 사이트�

Goodwill

21. As stated earlier in this decision, the fact that the applicant holds one or more trade mark registrations is irrelevant. Applicants are not required to hold trade mark registrations or even a company name registration. What is required is that the applicant proves that it has goodwill/reputation in the name relied upon, ARGYLE at the relevant date. Trade mark registrations provide monopoly rights against trade mark infringement, but they have no teeth per se as regards the operation of section 69(1) of the Act.

22. The relevant date for the purpose of proving goodwill/reputation is the date of the registration of the contested company name which, in this case, is the date of incorporation, 5 November 2015. As said earlier in this decision, some of the applicant바카라 사이트檚 evidence post-dates 5 November 2015. The extract from the financial Times Strategic Insight Poll from 2016 shows that the applicant was ranked 97th in the UK. However, although the poll report was after the relevant date, it is inherently unlikely that the applicant achieved such a high rank in 2016 without having also generated goodwill and having a reputation the previous year, so we accept that this exhibit has weight. The financial press reported in 2013 that the applicant had offices in Glasgow, Aberdeen and Edinburgh, dealing with 拢650 million-worth of assets, which by 2015 had risen to 拢745 million.

23. We note from the applicant바카라 사이트檚 evidence that it is referred to either as Argyle Consulting or as Argyle. The latter references, clearly, support the reliance upon the name, ARGYLE. Where the applicant is referred to as Argyle Consulting, we consider that this also supports reliance upon the name ARGYLE because the word 바카라 사이트楥onsulting바카라 사이트� is descriptive of the applicant바카라 사이트檚 business. We are satisfied that the applicant바카라 사이트檚 evidence shows that the applicant had the requisite goodwill identified by the name ARGYLE on 5 November 2015.

Are the names 바카라 사이트渟ufficiently similar바카라 사이트�?

24 The respective company names must also be 바카라 사이트渟ufficiently similar바카라 사이트� that use of the primary respondent바카라 사이트檚 name in the UK would be likely to mislead by suggesting a connection between the parties. The name relied upon is ARGYLE. The contested name is ARGYLE FINANCIAL SERVICES & PLANNING LIMITED. The differences between the names are descriptive words which inform the public as to the nature of the parties바카라 사이트� businesses: CONSULTING and FINANCIAL SERVICES & PLANNING. Both names begin with ARGYLE. Consequently, owing to the differences the names are not the same (section 69(1)(a)). However, because the only differences between the names are words which describe the businesses, it is the word ARGYLE which is the distinctive part of both names. Consequently, the names are sufficiently similar that the use of the primary respondent바카라 사이트檚 name in the UK would be likely to mislead by suggesting a connection between the parties, under section 69(1)(b) of the Act.

Defences

25. 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 any of the defences relied upon. As noted earlier in this decision, at a CMC held by a Company Names Adjudicator, which both parties attended by telephone, permission was given to the primary respondent to amend its defences, and to file an amended counterstatement and evidence, which it did on 2 August 2018. The applicant responded to the amended defence by filing written submissions on 13 September 2018. The applicant also filed further comments about the defence and the primary respondent바카라 사이트檚 evidence in its submissions in lieu of a hearing.

26. Although the amended notice of defence pleaded reliance on sections 69(4)(b)(i), (ii) and (iii) (as well as section 69(4)(e) of the Act), the primary respondent바카라 사이트檚 written submissions in lieu of a hearing focus upon section 69(4)(b)(i) and do not refer to sections 69(4)(b)(ii) and (iii). We will, therefore, look firstly at the defence pleaded under section 69(4)(b)(i).

Section 69(4)(b)(i): that the company is operating under the name

27. The relevant date for consideration of this defence is the date on which the applicant filed its complaint to the Tribunal (on Form CNA1): 7 August 2017.

28. The letter from the primary respondent바카라 사이트檚 accountants dated 19 July 2018 has been solicited for the proceedings. It is not in witness statement form, so it is hearsay and cannot be tested in cross-examination. The weight of hearsay evidence has to be assessed according to the various factors set out in section 4 of the Civil Evidence Act 1995:

바카라 사이트�4. Considerations relevant to weighing of hearsay evidence.

(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard may be had, in particular, to the following:

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.바카라 사이트�

29. The filing of a hearsay statement inherently comes with the risk that the tribunal may assess its weight at a lower level than that which the party considers it should carry (depending on the factors set out in section 4 of the Civil Evidence Act 1995). We find that the letter from the accountants is of little weight as it is not contemporaneous or corroborated by other accountancy documentation.

30. We note that the insurance schedule expired on the relevant date, so was valid for a year prior to that date (7 August 2017). The applicant has commented that there is no policy endorsement certificate attached to the schedule and therefore no evidence that the insurance was taken out (which would indicate trading). However, the bottom of the schedule says 바카라 사이트淓ndorsements attaching to this certificate바카라 사이트�, and there is a certificate number at the top of the document.

31. That said, our task is not to take apart each individual piece of evidence: we must consider the picture which all the evidence, put together, produces. The compliance report (Appendix 8) is dated 9 months prior to the relevant date. The report states that recommendations are made for enhancing and improving the primary respondent바카라 사이트檚 current practice, indicating that there were practices to review. A further fact highlighted in the report is that the reviewer noted that the primary respondent regularly held administrative staff meetings which were all documented. The reviewer records the fact that Mr Norris showed him around the primary respondent바카라 사이트檚 new premises and that it was 바카라 사이트渘ow 바카라 사이트� operating in its own area바카라 사이트�. The report confirms the FCA permissions contained in Appendix 5, issued to the primary respondent four months previously to enable it to operate.

32. Whilst these facts in the compliance report, dated 22 December 2016, could be said to indicate that the primary respondent was operating at that time, Mr Norris himself has said that the company did not start operating until the following month. It appears to us that the compliance report shows that this was a company gearing up to operate and that operations were imminent. This is reinforced by the fact that the applicant sent the primary respondent a letter on 28 April 2017, only four months after the date of the compliance report, stating that it had come to the applicant바카라 사이트檚 attention that the primary respondent was supplying services under the name ARGYLE. Looking at the evidence in the round, the combination of the compliance report and the applicant바카라 사이트檚 letter in such a short space of time, together with the FCA registration and the insurance schedule, indicates by the time the application was made to the Tribunal on 7 August 2017, the primary respondent was operating. Other parts of the evidence which support this are that the renewal dates for employer바카라 사이트檚 liability insurance and the data protection licence fell in 2017.

33. The primary respondent바카라 사이트檚 clients are people with serious debt issues: personal insolvency. Given this, and the fact that there is no street signage and no website, with a single source of custom via CreditFix (the personal insolvency business), it appears that the business is of a particular, niche, type where privacy and security are of great importance. It is not a retailer of financial services: it provides its services to a particular set of people who find themselves in regrettable personal circumstances. We do not consider the applicant바카라 사이트檚 arguments about lack of a website to be indicative of lack of trade.

34. The applicant submits that a change in who was dealing with the primary respondent바카라 사이트檚 case within the firm of solicitors sheds light upon the viability of the amended defence because the first solicitor would have known if there was an operating defence, and that it is telling that it was not included in the original pleadings. We do not consider that this casts doubt upon the amended defence; at most, it shows the solicitor바카라 사이트檚 inexperience in dealing with cases under the relevant sections of the Act.

35. We note that in the applicant바카라 사이트檚 submissions in lieu of a hearing, it doubts the veracity of Mr Norris바카라 사이트� witness statement:

바카라 사이트淔or example, he states the company commenced trading in January 2017 but the Compliance First report is dated 22 December 2016. So clearly the report does not indicate that the company was trading at the time because by Mr. Norris own admission it was not바카라 사이트�.

It is the primary respondent바카라 사이트檚 submissions in lieu of a hearing which suggest that the Compliance First report indicates operation. Mr Norris does not state that the primary respondent was trading at the date of the compliance report. He states clearly that it commenced trading in January 2017, the following month. It seems to us that the applicant has conflated the primary respondent바카라 사이트檚 submissions in lieu of a hearing (made by its representatives) with what Mr Norris, the witness, has actually stated. We have come to our own conclusions, based on Mr Norris바카라 사이트� evidence, that by the time the applicant filed its complaint on 7 August 2017, the primary respondent was operating. Mr Norris바카라 사이트� evidence is not obviously incredible. The applicant has made no request to cross-examine Mr Norris or filed evidence of its own to contradict Mr Norris바카라 사이트� statement. It is not open to the applicant to invite the tribunal to disbelieve a witness바카라 사이트檚 evidence at this late stage.

36. The pleaded defence that the company is operating under the name succeeds. It is unnecessary to consider the defences under section 69(4)(b)(ii) and (iii). However, if we had gone on to consider them, section 69(4)(b)(iii) would have failed because the primary respondent has never been dormant. Section 69(4)(b)(ii) requires evidence of substantial start-up costs in preparation for operating. No evidence enabling us to assess whether start-up costs were substantial has been provided.

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

37. As the primary respondent has succeeded in one of its defences, the application has failed. However, we will briefly comment upon its original defence, that the interests of the applicant are not adversely affected to any significant extent. The primary respondent submits that the areas of trade are different since the primary respondent deals with debt management, rather than financial advice of a more regular type. This is too fine a distinction as both parties provide financial services. It is also of no relevance where in the UK the parties바카라 사이트� customers are located. We note that the loss of control of a trading name is liable, of itself, to cause damage to the associated goodwill: see Maslyukov v Diageo Distilling [2010] EWHC 443. We are not satisfied that use of the primary respondent바카라 사이트檚 name could not adversely affect the applicant to any significant extent. Consequently, we find that the primary respondent has not succeeded with this defence.

Outcome

38. The purpose of s.69 of the Act is to prevent the opportunistic registration of company names (바카라 사이트榗ompany name squatting바카라 사이트�). This is why it is a defence to show that the company is actually operating under the name (and therefore subject to the laws of trade marks and passing off). Section 69 of the Act is not intended to provide exclusive rights to a company or trading name (as with trade marks). The primary respondent has succeeded in its defence that it was operating at the date when the application was made. The application fails.

Expenses

39. The Tribunal awards costs, or expenses in Scotland (and the parties are in Scotland) from the published scale at paragraph 10 of the Tribunal바카라 사이트檚 Practice Direction. This is intended to provide a contribution, but not recompense, to the successful party. It is the primary respondent who has been successful in these proceedings and who is entitled to expenses. However, the applicant requests expenses for having to deal with the amended defence. It requests 拢200 for attendance at the CMC and 拢600 for its review of the second CNA2, together with evidence. It is appropriate to offset the award to the primary respondent to take account of the extra work caused to the applicant, so we agree to offset the primary respondent바카라 사이트檚 award by 拢200 for the applicant바카라 사이트檚 attendance at the CMC. We also offset a further 拢200 for reviewing the second CNA2, which was shorter than the original. The applicant바카라 사이트檚 review of the evidence did not happen until the amended counterstatement was filed as that was the point when the primary respondent filed its evidence; it had not filed any previously. Therefore, we will not offset the primary respondent바카라 사이트檚 award for the applicant바카라 사이트檚 consideration of the evidence: there was no extra work because the applicant had not had to review any other evidence

40. The expenses breakdown is as follows:

Considering the CNA1 and preparing a CNA2: 拢300

Fee for filing the CNA2: 拢150

Considering the applicant바카라 사이트檚 evidence and preparing evidence: 拢500

Fee for filing evidence: 拢150

Preparing written submissions: 拢200

Subtotal: 拢1300

Offset: 拢400

Total: 拢900

41. Argyle Consulting Limited is ordered to pay Argyle Financial Service & Planning Limited the sum of 拢900. This sum is to be paid within 14 days of the period allowed for appeal or, if there is an appeal, within 14 days of the conclusion of the appeal proceedings (subject to any order of the appellant tribunal).

42. Under section 74(1) of the Act, an appeal can only be made in relation to the decision to dismiss the application; there is no right of appeal in relation to expenses. Any notice of appeal 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 25 March 2019

Judi Pike
Company Names Adjudicator

Louise White
Company Names Adjudicator

Mark Bryant
Company Names Adjudicator