A new set of Guidelines on Company Names (“Oct 2022 Guidelines”) issued by the Companies Commission of Malaysia on 5 October 2022 supersedes the previous guidelines issued on 15 March 2022 (“Mar 2022 Guidelines”) and 31 January 2017.
The main changes introduced by the Oct 2022 Guidelines compared to the Mar 2022 Guidelines are summarised below:
- principles and characteristic of names with new words without known meaning;
- identical names;
- company that has been struck off and Limited Liability Partnership (“LLP”) that has been dissolved; and
- names prohibited under the direction of the Minister.
Principles and characteristic of names with new words without known meaning
As per paragraph 8(j) of the Oct 2022 Guidelines, a letter of consent from an existing company carrying the same created word is not required for new names that uses created words without a known meaning unless the created word includes additional words that suggest a connection to the existing company. Using Jellex as the created word, the following examples are provided in paragraph 8(j) of the Oct 2022 Guidelines:
“New application Jellex Assets Holding Sdn. Bhd. must provide consent letter from existing company Jellex Assets Sdn. Bhd.
New application Jellex Trading Sdn. Bhd. is not required to provide a letter of consent from Jellex Assets Sdn. Bhd. (other existing company).”
The word ‘Holding’ in the example above may be viewed as misleading or confusing as it implies that the company is a holding company of the existing company.
With respect, this guideline may lead to confusion in the market if competing companies proceed to register new companies using a similar created word, which would facilitate passing-off attempts.
According to paragraphs 11(b) and 11(c) of the Oct 2022 Guidelines, the following shall not be regarded when determining if a company name is identical to another:
“(b) “Sendirian”, “Sdn”, “Berhad”, “Bhd”, “PLT” and “Perkongsian Liabiliti Terhad”;
(c) The following words and expressions where they appear at the end of the name:
“Company”, “Co”, “Syarikat”, “Corporation”, “Corp”, “Perbadanan”, “Incorporated”, “Diperbadankan”, “Incorporation”, “Incorp”, “Inc”, “Pemerbadanan”, “Holding”, “Group”, “Kumpulan”, “Malaysia”, “(M)”, “Msia”, “Consortium”, “Konsortium”, “Consolidated”;”
The Oct 2022 Guidelines included three (3) types of factors that determine whether paragraphs 11(b) and 11(c) above should be considered in the following 3 examples given:
Zip Legacy Sdn. Bhd. (existing)
Zip Legacy Malaysia Sdn. Bhd. (new application)
The use of the words “Malaysia”, “(M)”, “MY”, “Msia” (at the end of the company name) in the new application does not distinguish it from the existing company name. Therefore, a new application cannot be considered even if a letter of permission is attached.
Zip Legacy (M) PLT (existing)
Zip Legacy Consolidated Sdn. Bhd. (new application)
A new application can be considered if the letter of permission from the existing PLT, i.e. Zip Legacy (M) PLT. is included.
The words “Holding”, “Group”, “Kumpulan” “Consortium”, “Konsortium”, “Consolidated” can distinguish the newly applied name from the existing company name.
Zip Legacy (Sabah) Sdn. Bhd. (existing)
Zip Legacy Inc Sdn. Bhd. (new application)
New applications will be considered if there is a letter of permission from the relevant Federal Government/ State Government/ Government agency. The words “Company”, “Co”, “Syarikat”, “Corporation”, “Corp”, “Inc”, “Incorp”, “Incorporated”, “Incorporation”, “Perbadanan”, “Diperbadanan”, “Pemerbadanan” are prohibited to be used unless there is a government interest in the company and a letter of permission from the relevant Federal Government/ State Government/ Government Agency must be attached.”
Company that has been struck off and Limited Liability Partnership that has been dissolved
As far as the use of the same company name that has been struck off is concerned, the difference between paragraph 10(i) of the Mar 2022 Guidelines and paragraph 11(i) of the Oct 2022 Guidelines is the section for which the company was struck off. The former strike off a company under Section 555(1) of the Companies Act 2016 (“CA 2016”) and the latter relied on section 549 of the CA 2016.
The amendment from Section 555(1) to Section 549 of the CA 2016 would mean that paragraph 11(i) of the Oct 2022 Guidelines no longer cover situation where a company is dissolved after the final meeting of members and creditors (as applicable) and the lodgement by the liquidator of the return and account with the Registrar and the Official Receiver under section 459 CA 2016. As a result, the Oct 2022 Guideline is silent as to when a name of a dissolved company under section 459 can be used again.
Names prohibited under the direction of the Minister
Paragraph 12 of the Oct 2022 Guidelines refines the previous paragraph 11(a) of the Mar 2022 Guidelines which prohibit the use of wors such as ”Royal”, “King”, “Queen”, “Prince”, “Princess”, Crown”, Regent” or “Imperial” to avoid any indication that the company is associated with a member of the Royal Family or enjoys Royal patronage.
Under the present Oct 2022 Guidelines, the Registrar may consider applications with such name if:
- The word refers to the name of a location such as “Putra Nilai” or “Taman Mahkota”;
- The word indicates the size of the product such as “king-sized roof” or a brand such as “Musang King”;
- The Resgirar considers the use of the words do not indicate any connection with the Royalty;
- The word refers to the name of an individual or the director of the company such as “Sultan Ali” or “John King” based on identity documents.
In conclusion, whilst the amendments introduced by the Oct 2022 Guidelines have clarified some of the former Guidelines, there remains an element of uncertainty which would ultimately depend on the discretion of the Registrar.