The Registrar of the Companies Commission of Malaysia (‘Registrar’) issued a new set of Guidelines on Company Names on 5 October 2022 (‘October 2022 Guidelines’).
 
The October 2022 Guidelines supersede the Guidelines on Company Names issued by the Registrar on 15 March 2022 (‘March 2022 Guidelines’). The March 2022 Guidelines in turn, superseded the previous corresponding guidelines issued by the Registrar on 31 January 2017 (‘January 2017 Guidelines’) when the Companies Act 2016 (‘CA 2016’) came into operation.
 
The main changes made to the March 2022 Guidelines under the October 2022 Guidelines are summarised below.
 
Principles applicable to new words without known meaning
 
Paragraph 8(j) of the October 2022 Guidelines sets out the general principles and characteristics of names based on ‘new words that are designed without a known meaning’.
 
The corresponding provision in the March 2022 Guidelines is paragraph 7(j) wherein such ‘new designed words’ are described as ‘created words’. Paragraph 7(j) of the March 2022 Guidelines, inter alia, states that for created words, a letter of consent is not required from an existing company that has the same created word in its name. This dispensation of consent is retained in paragraph 8(j) of the October 2022 Guidelines. The following two examples are provided in paragraph 8(j) in relation to an existing company, Jellex Assets Sdn. Bhd. whose name contains the created word ‘Jellex’:
 
“New application Jellex Assets Holding Sdn. Bhd. must provide consent letter from existing company Jellex Assets Sdn. Bhd. (regards of registered holding company).
 
New application Jellex Trading Sdn. Bhd. is not required to provide a letter of consent from Jellex Assets Sdn. Bhd. (other existing company).”
 
It appears from the examples provided in the October 2022 Guidelines that an application for the use of a new word that is designed without a known meaning in a company name will not require consent from an existing company whose name bears the same word unless there are additional words in the new name that suggest some relationship with the existing company. In the example given, the word ‘Holding’ may be viewed as misleading or confusing in that it suggests that it is the holding company of the existing company.
 
Identical names
 
Paragraphs 11(b) and 11(c) of the October 2022 Guidelines, which are identical with paragraphs 10(b) and 10(c) respectively of the March 2022 Guidelines, provide that in determining whether a company name is identical to another, the following shall be disregarded:
 
“(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 following three examples are now included in the October 2022 Guidelines to assist in understanding the application of paragraphs 11(b) and 11(c):
 
“Three (3) types of factors in determining whether the abovementioned words are taken into consideration:
 
Example 1:
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.
 
Example 2:
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.
 
Example 3:
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 its use 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
 
Paragraph 11(i) of the October 2022 Guidelines provides as follows: 

Paragraph 10(i) of the March 2022 Guidelines is substantively similar to paragraph 11(i) of the October 2022 Guidelines insofar as it relates to the use of the name of an LLP that has been dissolved. However, paragraph 10(i) differs from paragraph 11(i) in that the former permits the use of the name of a company that has been dissolved by court order/ voluntary winding up seven years after the dissolution of the company under subsection 555(1)¹ of the CA 2016 whereas the latter provides for the use of the same name of a company that has been struck off pursuant to section 549 of the CA 2016.
 
Section 549 of the CA 2016, which is referred to in paragraph 11(i) of the October 2022 Guidelines, sets out various circumstances in which a company may be struck off, e.g. the company is not in operation or has contravened the CA 2016 or is being used for unlawful purposes. As section 549 does not apply to a company that 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 of the CA 2016, the October 2022 Guidelines do not provide guidance as to when the name of a company that has been dissolved under section 459 may be used again.
 
Use of names prohibited under Minister’s Direction
 
The Registrar has been directed² by the Minister of Domestic Trade, Co-Operative and Consumerism³ not to accept certain names for registration unless the prior approval of the said Minister has been obtained. The names include those set out in paragraph 11(a) of the March 2022 Guidelines that suggest a connection with a member of the royal family or royal patronage, such as “Royal”, “King”, “Queen”, “Prince”, “Princess”, “Crown”, “Regent” or “Imperial” (‘Royal Connection’). The March 2022 Guidelines set out five criteria where the Registrar may consider applications for the use of names that suggest a Royal Connection: 

The requirements in paragraph 11(a) of the March 2022 Guidelines are maintained in paragraph 12(a) of the October 2022 Guidelines except for the following changes: 

The removal of Criterion 1 and Criterion 2 from the October 2022 Guidelines give rise to uncertainty as to whether the Registrar may consider the use of words suggesting a Royal Connection that fall within the ambit of these criteria. However, it is possible that the Registrar may be able to consider an application for the registration of a name by a foreign company that suggests a Royal Connection if the applicant is able to satisfy the conditions set out in Criterion 5. Similarly, it is possible that the Registrar may be able to consider the use of a word that is a registered trademark in a company name if the registered trademark is indicative of a brand as provided in the Modified Criterion 4.
 
Comments
 
Apart from the key amendments discussed above, the October 2022 Guidelines contain amendments that refine and clarify certain provisions in the March 2022 Guidelines. It would be desirable for the Registrar to clarify two points. First, the Registrar should specify a time frame whereby the use of the name of a company that has been dissolved pursuant to section 459 of the CA 2016 may be used again.
 
Second, the Registrar should clarify whether he has the discretion to consider an application for the registration of the name of foreign company that includes a word that suggests a Royal Connection or where the name of a company that suggests a Royal Connection is a registered trademark.
 
The changes made to the March 2022 Guidelines under the October 2022 Guidelines are less far-reaching than the changes made to the January 2017 Guidelines under the March 2022 Guidelines. Our summary of the key changes made to the January 2017 Guidelines under the March 2022 Guidelines can be accessed here.
 
Article by Tan Wei Liang (Senior Associate) and Vanessa Ho (Associate) of the Corporate Practice of Skrine.
 

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