HOW TO CHOOSE A COMPANY'S NAME

NAME OF PROPOSED COMPANY

Section 25(2) CA 2016 provides that a company may have as its name:

a) an available name, or

b) any such expression as the resistrar may assign upon its incorporation

s.26(1) provides:

A name is available if it is not:

a) undesirable or unacceptable

b) identical to an existing company

c) identical to a name that is being reserved

d) a name that Minister had directed not to accept

s.27(1) – a person shall apply to theregistrar to confirm the availability of a proposed name.

s.27(2) – the registrar will confirm the name if he satisfied that name not subject to s.2691).

CCM also had produced a guidelines on name dated by 31 January 2017. This is extract from the guidelines :

General Principles and Characteristics Of Names Acceptable for Registration

11. The following principles should be observed when deciding on a name of a company:

(a) Correct spelling and proper grammar must be used;

(b) The use of mixture of Bahasa Malaysia and English is allowed if the use is to describe the type of business and must follow proper grammar.

(d) Names which are not blasphemous or likely to be offensive to members of the public;

(e) Names which do not resemble elements of religion;

(f) Refrain from using words which are too general, for example “Technology Sdn. Bhd.” or “International Sdn. Bhd.”;

(g) Only names of directors who are specified at the application form for incorporation can be used as company names. Proof of relationship must be given if other individual names are proposed to be used. Similarly, consent letter must be obtained from the group of companies whose individual names are proposed;

(h) The meaning of created or coined words must be given;

(i) The name refers to the name of the director or owner

(j) Use symbols that are allowed to be used in the name of the company is limited to 5 symbols only and must be appropriate to the use of:

(i) “&” (include “dan”, ‘and” and “N”)

Example : D&T Services Sdn. Bhd.

(ii) “.” (“dot” symbol)

Example : Mr. John Trade Sdn. Bhd.

(iii) “-“ (“hyphen” symbol).

Allowed only for double words or common words that use hyphen.

Example : Kupu-Kupu Design Sdn. Bhd.

Focus Re-Engineering Sdn. Bhd.

(iv) “( )” bracket symbol

Example : ZY Advertising (2017) Sdn. Bhd.

(v) “ ’ ” ( “apostrophe” symbol)

Example : Mum’s Recipe Sdn. Bhd.

Dato’ Yusoff Yahaya Trading Sdn. Bhd.

12. The name is not an acronym that can be confused with names that are associated with the following:

(a) Stands for the names of the institutions of higher learning

Example:

UiTM, UTM, UM, UKM, UPM, UUM, USM, UIA, UNIMAS, UMS, UIAM, UPSI, UMT, UMP, UTEM, UNIMAP, UTHM.

(b) Is the name stands for Federal government agencies or State and Government Owned Companies (GLC).

Example:

SSM, CCM, JKR, JPA, JPM, BNM, KPDNKK, SEDC, PKEN, SIRIM, TNB, PNB, FELDA, FELCRA, PETRONAS, SKM, MYCC, MIDA, KWSP, LHDN, PERKESO, MARDI, RISDA.

UNDESIRABLE OR UNACCEPTABLE NAMES

12. The Registrar has a full discretion in determining whether a name is undesirable or unacceptable. In exercising that discretion, the Registrar may determine that a name is undesirable or unacceptable if—

(a) contains words of an obscene nature;

(b) it is contrary to public policy including names which are set out in paragraphs 3;

(d) Names that are misleading as to the identity, nature, objects or purposes of a company or in any other manner.

IDENTICAL NAMES

13. In determining whether a company name is identical to another, the following shall be disregarded:

(a) “The”, where it is the first word of the name;

(b) “Sendirian”, “Sdn”, “Berhad” and “Bhd”;

(c) the following words and expressions where they appear at the end of the name: “company”, “and company”, “corporation”, “Incorporated”, “ Holding”, “Group” “Malaysia”;

(d) any word or expression which, in the opinion of the Registrar, is intended to represent any word or expression in sub-paragraph (c);

(e) the plural version of the name;

(f) the type and case of letters, spacing between letters and punctuation marks; and

(g) the symbol “&” is deemed to have the same meaning as the word “and”.

NAMES WHICH ARE PROHIBITED UNDER THE DIRECTION OF THE MINISTER

14. The Minister has directed the Registrar not to accept the following names for registration:

(a) Names suggesting connection with a members of the Royal family or Royal patronage including names containing such words as “Royal”, “King”, “Queen”, “Prince”, “Princess”, “Crown”, “Regent” or “Imperial”;

(b) Names suggesting connection with a State or Federal government department, statutory body, authority or government agency or any municipality or other local authority, including names containing such words as “Federal”, “State” or “National”;

(c) Names suggesting connection with any ASEAN, Commonwealth or foreign government or with the United Nations or with any other

international organization or cartel including names containing such words as “ASEAN”, “UNESCO”, “NATO”, “EEC” ,“OPEC”;

(d) Names suggesting connection with any political party, society, trade union, co-operative society or building society;

(e) Names including the following words or any words of like import:

“Bank”, “Banker”, “Banking”, “Bumiputra”, “Bureau”, “Chamber of Commerce and Industry”, “Chamber of Manufacturers”, “Chartered”, “College”, “Consumer”, “Council”, “Credit”, “Exchange”, “Executor”, “Fair Price”, “Finance”, “Foundation”, “Fund”, “Guarantee”, “Institute”, “Insurance”, “Investment”, “Leasing”, “Made in Malaysia”, “Prime”, “Registry”, “Treasury”, “Trust”, “Unit Trust”, “University”

Section 27 (6) provides that the confirmation of availability of name or the reservation of name under this section does not in itself entitle the intended company, company or foreign company to be registered by that name, either originally or on a change of name.

ANGKASA JURUTERA PERUNDING SDN BHD v PENDAFTAR SYARIKAT (KETUA PEGAWAI EKSEKUTIF, SURUHANJAYA SYARIKAT MALAYSIA) & ANOR [2004] 5 MLJ 421 (HC).

In this case, the primary issue was whether the trade name ‘Angkasa Consulting Services Sdn Bhd’ was so similar to ‘Angkasa Jurutera Perunding’ that it was undesirable within the meaning of section 22 of the Companies Act 1965.

The court held that these names were in no way identical or closely similar, and read as a whole, clearly denoted two different companies and that the word ‘Angkasa’ was not descriptive of any business and as such, no one ought to have monopoly over the usage of that particular word as a trade name. Even when the plaintiff’s name was translated into the English language the word ‘Service’ in the second defendant’s name was a material distinction from the word ‘Engineers’ in the plaintiff’s name.

MAXIS SDN BHD v SURUHANJAYA SYARIKAT MALAYSIA & ORS [2004] 2 MLJ 84

Maxis Sdn Bhd sought a declaration against the Registrar of the Companies in approving the use of the name of the name ‘Maxis’ by the second to tenth defendants. The second to seventh defendants (the applicants) however counterclaimed against the plaintiff and four others (the respondents) for passing off and applied for an interim injunction to prohibits the respondents from using the name ‘Maxis’, passing off its business as that of the applicants, conducting any form of business using the name ‘Maxis’ or any name consisting of the name ‘Maxis’ and advertising in any form whatsoever using the word ‘Maxis’.

The court held, allowing the application in part and granting the interim injunction as follows:

a. The original legal concept of passing off was confined to traders competing in the same line of business or goods. However, this cause of action had been extended to protect and preserve the goodwill of businessman. It was not restricted to cases where the parties were engaged in a common field of business activity but also extended to any business that might mislead persons into thinking that those products or services were the goods and services of another

b. The applicants had through constant and persistent advertisement promoted the word MAXIS to be a name associated and belonging to the applicants in Malaysia. Though the name mainly connected with the business of telecommunications, nevertheless other lines of product and services bearing such name could be considered by the public as that of the applicant.

c. The actions of the respondents clearly raised suspicions that they were out to deceive, confused and mislead the public into believing that the goods and services they offered were those applicants (MAXIS Group of Companies). When actions were carried out with intention to defraud, as evidenced from the actions of the respondents in the case, the court should be more vigilant and will move in to prevent it; and

d. From the facts disclosed in the affidavits of the parties, there was a likelihood of damage to the applicants if the respondents were not restrained in this action.