ACCA LW新公司法组建公司：Company name

Relevant to LW-LSO

The law relating to companies in Lesotho used to be very similar to the old English Companies Act 1948.However,this is no longer so,and Lesotho now has a new Companies Act(CA)2011.This article discusses how the companies are incorporated under the CA 2011.

CA 2011 modernises company law in many ways.One of them is that it allows the formation of a single shareholder limited liability private company.Unlike in the UK,a public company with a single member cannot yet be incorporated in Lesotho.

Statutory law took so long to formally recognise what the House of Lords envisaged in 1897,when in effect they allowed the incorporation of a company in Salomon v Salomon with a single shareholder,the other six being no more than mere nominees.

Company name

The first step in forming a company is to decide on a suitable name.This is of some importance in identifying an artificial person,though a little less so now that under the CA 2011 the registrar has to allot each company a company number as well.CA 2011 requires that an application for incorporation must state the company’s proposed name.

There are restrictions on the promoters’freedom to formulate the corporate name.The first of these is that a limited company must end its name with a warning suffix–‘limited’if it is a public one and‘proprietary limited’if it is a private one.These expressions may be abbreviated to‘Ltd’or‘Pty Ltd.’The purpose of this requirement is to warn a person dealing with the company that it is a body with limited liability,though whether it is effective in this regard is another matter.

To the requirement that a limited company must have‘limited’at the end of its name,the Act provides an exemption in favour of companies whose pursuits are in the interests of the public and which applies its profits or income toward those pursuits and,accordingly,prohibits the payment of any dividend to its members.

More important than what the name must contain is what it must not.Certain expressions like Imperial,Royal,Crown,Empire,Government,State,Commonwealth,Dominion,African Union,United Nations or any other word or words that import,or suggest,that the company enjoys the patronage of the Sovereign or Government of Lesotho,or of any part of the Commonwealth,or of any department of any such Government or Administration or of the General Assembly of the United Nations,cannot be part of a corporate name,unless the registrar consents to the use of these words.If,in the opinion of the registrar,the name is such that its use would be‘offensive’,it cannot be chosen either.Perhaps names that are suggestive of blasphemy or indecency may be regarded as‘offensive.’

Moreover,the name must not be the same that is identical,or similar,to a name that the registrar has already registered under the CA 2011 or the CA 1967,for another company.It must not be also identical to a:

trade name well known nationally,regionally or internationally,or

trademark registered nationally,regionally,internationally,or

well-known trademark.

Under the Industrial Property Order 1989,trade names and trademarks,which are registered or otherwise well-known in Lesotho,cannot be expropriated and a company may not use them in its name because it may be harmful to legitimate business interests of other parties and also detrimental to the public.It is the duty of promoters to search the registers,directories and records of names of companies in Lesotho and make sure that their proposed name is not identical to any of them.And,if it does,then they have to attach the consent of the relevant company.Last,the use of the name must not contravene any law in force in Lesotho.【点击免费下载>>>更多ACCA学习相关资料】

The common law rule of passing off also limits the choice of promoters.They must take care that the name they choose must not be identical to,or closely resemble,the name of another enterprise or trade name,or in some cases the trademark.The case of Aerators Ltd v Tollett(1902)illustrates it very well.In that case,the business of the plaintiffs,Aerators Ltd,consisted of selling‘Sparklet’,a small device containing carbonic acid gas by means of which the contents of bottles were aerated.Tollett proposed to set up a company with the name of‘Automatic Aerators Patents Limited’for the aeration of liquids contained in tanks or large containers.The plaintiffs objected to the name and applied for an interdict to prevent the registration of a company under that name on the ground that such a name so closely resembles their own name as to be calculated to deceive.

Farwell J refused to grant the interdict and observed that a company has a greater right than an individual in respect of names that are identical.For‘John Smith’cannot prevent other persons of the same name from using their own name;but‘John Smith Limited’can prevent the registration of any other company as‘John Smith Limited’.

It was explained that the words‘calculated to deceive’did not mean intentional fraud,but only‘likely to deceive’.It is a question of fact in each case whether the name of the new company is so similar to that of the old company as to induce the belief that the two companies are identical.

In the case,the word‘aerators’has been used in the corporate name.The word‘aerators’is a common word in the English language to apply and rightly describe a machine for producing a particular result.The plaintiffs cannot monopolise the use of a common English word.In considering whether a name is calculated to deceive,it is material to see if the name is simply a word in ordinary use representing a machine,or an article of commerce.

The court concluded that,in this case,the plaintiff’s action is an attempt to monopolise a word that is in ordinary use in the English language and this cannot be permitted.

Promoters,therefore,should carefully consider the implications if they choose to use words of ordinary use as part of the corporate name.They should also remember that the registrar,when approving a name,does consider its visual and phonetic aspects.The registrar is aware that members of the public do not often see names side by side,but one after the other,with a time lapse in between and has regard to the likelihood of imperfect recollection.Coca Cola and Koka Kola phonetically sound similar,and so is Kentucky Fried Chicken and Fried Kentucky Chicken.

It should be apparent that it might not be easy to find a name acceptable to both the promoters and the registrar.Nevertheless,until a suitable name is found,it is impossible to incorporate a company.Under the CA 1967 promoters could suggest several names to the registrar and ask if any one of them is available for registration as a corporate name.Once the registrar indicated their approval,the promoters could ask the registrar to‘reserve’that name for a certain period.CA 2011 does not have such a provision.However,Regulation 6 does permit a promoter to‘reserve’a name acceptable to the registrar before entering into a pre-incorporation contract and submit registration documents of the company within 14 days of the registration of the corporate name.Promoters might find this useful.

【ACCA LW新公司法组建公司：Registration documents】