公司法和商法(双语)讲义 第16章Corporate and Business Law Chapter 16.docVIP

公司法和商法（双语）讲义 第16章Corporate and Business Law Chapter 16 16 Memorandum of association 1 Introduction 1.1 The memorandum defines the companys 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 NAME CLAUSE Refusal to Passing-off Change register Basic objective 2.1 This obviously sets out the companys 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. PassingOff 2.3 (a) There is a tort (called passingoff) 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 persons 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 misle