Section 25 of the Companies Act 1997 is the Registrar’s corrective power over names already on the register.
Section 25(1) — the notice
Where the Registrar believes on reasonable grounds that the name under which a company is registered should not have been allowed, the Registrar may serve written notice on the company to change its name by a date specified in the notice — being a date not less than one month after the date on which the notice is served.
Three elements control the power.
- “Reasonable grounds”. The belief must be reasonably held, which makes it reviewable.
- “Should not have been allowed”. The test looks back to section 22: a name whose use would contravene any law, that is identical or almost identical to another company’s name or a live reservation, or that is undesirable, misleading, deceptive or offensive without the Minister’s consent.
- “Not less than one month”. A minimum, not a maximum. The Registrar may allow longer, and often should where a rebrand affects signage, packaging and contracts.
Rarely on the Registrar’s own initiative. In practice a competitor, a regulator or a trade mark owner writes in, pointing to a name that is almost identical to theirs, that implies a licence the company does not hold, or that suggests official sponsorship. Section 25 is the Registrar’s response.
Sections 25(2) and (3) — the Registrar chooses for you
Where the company does not change its name within the period specified, the Registrar may enter on the register a new name for the company selected by the Registrar, being a name under which the company may be registered under Part IV.
Section 25(3) then requires the Registrar to issue a certificate of incorporation recording the new name, and applies section 24(4) to it. So the change:
- takes effect from the date on the certificate; and
- does not affect the identity of the company, its rights or obligations, or legal proceedings by or against it — proceedings under the former name may be continued or commenced under the new one.
A company that does nothing does not keep its name. It loses the name and the choice of replacement. Registrars in this position commonly assign a neutral name built from the company number — workable on the register, useless as a brand.
Responding to a section 25 notice
| Option | What it involves |
|---|---|
| Comply | Reserve a new name, pass a special resolution under s 24(1)(c), and lodge the application — all inside the notice period |
| Ask for more time | In writing, with the rebranding steps and a timetable. Section 25(1) sets a minimum period, not a maximum |
| Answer the objection | Show the name does not fall within section 22 — evidence of the differences from the other name, of the market, of long use, or of consent from the objector |
| Seek the Minister’s consent | Where the objection is under section 22(3) — undesirable, misleading, deceptive or offensive |
| Appeal | Under section 408, to the National Court, which may approve the decision or give such directions or make such determination as it thinks fit |
The exercise of the Registrar’s powers is not affected by the making of an appeal; he may continue to act until a decision on the appeal is given. A company that appeals should therefore also seek an interim order restraining the Registrar from entering a new name pending the hearing. Lodging the appeal alone will not preserve the position.
Grounds for challenging a direction
- No reasonable grounds. The belief must be reasonably held on the material before the Registrar.
- The name was properly allowed. If the name did not offend section 22 when registered, the precondition in section 25(1) is not satisfied.
- “Almost identical” is not made out. The bar is duplication, not mere similarity — a narrower test than deceptive similarity in trade mark law.
- Natural justice. The principles of natural justice under section 59 of the Constitution apply: the company is entitled to know the case and to answer it before a new name is imposed.
- Judicial review. Beyond section 408, review lies in the National Court under Order 16 of the National Court Rules and section 155(4) of the Constitution.
Avoiding a section 25 notice altogether
- Search properly before reserving — the companies register, business names, and the Register of Trade Marks.
- Avoid names implying a licence or official status you do not hold.
- Get written consent where you are using a name close to another party’s, and keep it on file.
- Do not rely on registration as a defence. A registered company name is no answer to infringement under section 53 of the Trade Marks Act, or to passing off — and a court order in either can force a change without the Registrar being involved at all.
- Register the brand as a trade mark, so the name you trade under is protected in its own right.
Sources
- Companies Act 1997 — ss 21–26, 88, 408, 409
- Trade Marks Act (Chapter 385) — ss 1, 53
- Constitution — ss 59, 155(4)
Before relying on anything here, read the current text of the Companies Act 1997 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.