Memorandum of association
1 Introduction
1.1 The memorandum defines the company's relationships with third parties.
Specimens are in the Companies Act.
There are six principal clauses:
1.2 (a) name
(b) registered office
(c) objects
(d) limited liability
(e) share capital
(f) association.
NB: Plc’s will also have a clause declaring their status.
2 Name clause
Overview
Basic objective
2.1 This obviously sets out the company's name.
Refusal to register
2.2 By S.26 the Registrar may refuse to register a name which is:
(a) offensive (in the opinion of the Secretary of State)
(b) constitutes an offence (ie, prohibited by statute: Banks must be registered under the Banking Acts)
(c) the same as an existing corporation (although a person can use his/her own name)
(d) where the words require permission and this has not been provided. There are two types of such words:
(i) those which imply a connection with the government or civil service.
(ii) those mentioned in the list in the Business Names Act 1985 and The Company and Business Names (Amendments) Regulations 1992.
Passing Off
2.3 (a) There is a tort (called passing off) where a person carries on a business under a name that would mislead the public into believing the business is conducted by another person.
(b) The most common method is to trade under a similar name.
(c) The injured party must prove that there is a genuine possibility of confusion.
(d) Remedies:
(i) an injunction to prevent further violation.
(ii) damages.
(e) The court tends to allow the use of a person's name who is directly involved with the company.
Changes of name
2.4 (a) The name clause can be changed by special resolution.
(b) The Secretary of State can order a company to change its name
(i) Within 12 months if the company has been inadvertently issued with a name similar to that of an existing company. s.28(2)
(ii) Within 5 years if misleading information was supplied. s.28(3)
(iii) At any time if the use of the name is likely to cause harm to the public. s.32
(c) Action of company (whether acting voluntarily or by direction).
A copy of the special resolution and the revised memorandum must be sent to the Registrar within 15 days.
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