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| The law |
Refer to a lawyer |
Refer to an accountant |
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1. What constitutes an "old name"? |
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Old names fall into several categories: |
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- names previously used by existing charities on the Register;
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- names used by charities which have been voluntarily removed from the Register (ie the charity becomes "excepted");
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- names used by charities which have been removed from the Register (ceasing to operate);
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- names used by charities which have been removed from the Register (ceasing to be charitable); or
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- names used by charities which have been removed from the Register (ceasing to exist).
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2. Policy and approach |
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Generally, we advise against the use of a name which already appears on the Register as a former main name of another charity, and against the use of a name of a charity which is no longer registered. |
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This is largely because there is often potential for confusion where bequests are still made to a charity in a former name, which could be compounded if another registered charity also adopted that name. |
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In some cases, there might also be legal rights or other restrictions on the use of a name - eg trademark protection. These may not necessarily be known to us, and we do not as a rule contact external bodies when considering the use or approval of names. |
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For example, neither we nor Companies House consult the Trade Marks Register when considering names of charitable companies. But our acceptance of a name does not mean that trade mark rights might not exist (they could even exist through use as unregistered trade marks). It is a matter for the company directors (as the trustees) to make appropriate checks with the Patent Office (and with Nominet.UK, the registry for UK domain names, if considering a presence on the Internet). |
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3. Name change directions |
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We can only direct a charity under section 6(2)(a) of the 1993 Act to change its name on grounds of sameness or similarity if at the time of entry on our Register there is another charity (which may or may not be registered) operating under the same or similar main name. |
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If the other institution is defunct, or is no longer a charity, or no longer uses the same/similar name as its main name, there is no basis for a name change direction under section 6(2)(a). |
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But, where we are aware of a charity on our Register operating under the same or similar main name as an existing non-registered charity, we shouldconsider whether a direction for change of name is appropriate for the registered charity - subject of course to our usual criteria. (This could encompass a direction for a charity operating under the same or similar name as an exempt charity - we have no power to direct the exempt charity to change its name). |
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However, it is not possible for us to know the names used by all non-registered charities, and we do not have the staff or resources to make detailed checks beyond those accessible on CDB. |
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4. Shell charities |
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Where the charity trustees of a trust or unincorporated association are promoting the formation of a charitable company to take over the work of the "old" charity, and to which all the old charity's assets are being transferred, the trustees may want to preserve the name of the old charity for certain limited purposes - eg the collection of legacies and covenanted income. |
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We will not direct the new charity to change its name on the grounds that it is the same as, or too like that of the existing charity. The assets of the old charity will simply be the subject of a grant to the new charity anyway, so any confusion in the minds of donors will not be material |
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5. Searches on CDB |
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In order to maximise the search on CDB, the all charities option should be selected to capture the names of non-registered charities entered onto the system because a case has been opened on them, or (usually) where they are now excepted or removed for other reasons, but still have an internal reference on CDB. |
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There is no requirement beyond that to examine the circumstances in which a charity was removed from the Register. |
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6. Charities applying for re-instatement to the Register |
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- Where a charity is removed from our Register, either voluntarily or for any other reason, there may be circumstances in which it later wishes to re-register, or becomes liable for compulsory registration. If this occurs within five years of removal, our normal practice is to allow the charity to re-adopt its former registration number.
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Conceivably, the charity may have changed from its original main name, but wish to re-adopt it on restoration to the Register. However, if that name has in the meantime been adopted by a different charity, the charity seeking restoration to the Register may (if it has assumed its old name) be subject to a name change direction. |
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It should be borne in mind, though, that this could involve applying our criteria for "prominence" and "pre-eminence" (see sections 6.3 and 6.4 of OG 18 C1 ) where an existing registered charity was considered to be less significant than a charity re-applying for registration. |
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Also, as mentioned above, we cannot necessarily know what legal or intellectual property rights might attach to a name. Placing a name on the Register does not confer exclusive rights, nor protect it from potentially better claims. |
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However, care must be taken where we are aware that a case might involve an infringement of intellectual property rights, or where there are restrictions on the use of a name by virtue of trademark protection. We have a responsibility under the European Convention on Human Rights not to use our powers under s.6 in such a way as to damage a charity's proprietary rights under Article 1 of the First Protocol to the Convention - unless such action on our part is a proportionate response in the context of pursuing domestic social policy objectives. |
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The approval of the Names Legal Officer should be sought (after consultation with the Charity Names Officer and the local Head of Registration) in any case where it is considered that an existing registered charity ought to be asked to change its name, or where a direction for change of name is contemplated. |
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7. Old names on CDB |
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When a name change has taken place on CDB, the charity's former name is automatically displayed in the Old Names field. Only valid old names should be retained on CDB, and "old" names which simply arise from the correction of spelling mistakes should be deleted from the Register. |
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