Criteria for Names of Companies
Section 11(2) of the Companies Act 71 of 2008 (hereinafter referred to as “the Act”) specifically provides that the name of a company may not be the same or confusingly similar to the name of another company, close corporation or co-operative. A name will be confusingly similar if the name has the ability to make a potential client think that the company is the same as or affiliated to another company with either the same or a similar name. The name may also not be the same as a name that has been registered as a business name in terms of the Business Names Act 27 of 1960 or a trademark that has been filed for registration in terms of the Trade Marks Act 194 of 1993.
The name of a company also may not falsely suggest that the company is part of or associated with any other person or entity, is an organ of state, is owned by a person having a particular education designation or who is a regulated entity, is owned or operated by a foreign state, government or an international organisation.
In the case of a ‘profit’ company, the name of the company could simply be the registration number of the company. If such a name is adopted, the number must be followed by the expression ’South Africa’. The name of a non-profit company may not be only a registration number.
A company name may comprise words in any language even if the words are not commonly used. The name can be used together with any letters, numbers or punctuation marks. The following symbols can be used as part of a company name: +, &, #, @, %, = or any other prescribed symbol. Round brackets (…) may be used in pairs to isolate any part of the name. A combination of letters, numbers, symbols, punctuation marks and brackets may also be used in a name.
If the name of a company, as entered on the Notice of Incorporation, fails to satisfy the requirements set out in the Table above, the Commission may alter the name to ensure compliance with the above.
Change of Name
Where the name of the company is the same as the name of another company, close corporation or co-operative, or has been reserved in terms of section 12 for someone other than the incorporators or the company, the Commission must simply use the company’s registration number as the interim name of the company in the Companies Register and add on ‘Ltd’, ‘SOC’, or ‘NPC’ in the manner indicated in the Table above.
The Commission must then invite the company to file an amended Notice of Incorporation using a satisfactory name.
Upon the filing of an amended Notice of Incorporation by a company, the Commission must enter the company’s amended name in the Companies Register and issue an amended Registration Certificate showing the amended name of the company.
Where the Commission is of the opinion that the suggested name could be similar to that of another company or business entity or trade mark or that the name suggests that the applicant company is associated with another entity or organ of state, the Commission can by written notice require the applicant to serve a copy of the application and name reservation on any particular person, or class of persons, named in the notice, on the grounds that the person or persons may have an interest in the use of the reserved name by the applicant. Any person with an interest in the company name may apply to the Companies Tribunal for a determination whether the name satisfies the requirements of the Act.
Use of Name and Registration Number
In terms of section 32 of the Act a company must provide its full registered name or registration number to any person on demand and must not misstate its name or registration number in a manner likely to mislead or deceive any person. If the Commission has issued a Registration Certificate with an Interim name, as contemplated in section 14(2)(b) of the Act, the company must use its interim name, until its name has been amended.
Please do not hesitate to contact me for further information.
TONKIN CLACEY PRETORIA
012 346 1278