With tourism a major industry for the economy of Seychelles, air travel and the subject of airlines in Seychelles is a hot topic. At present there is only one aviation company in the country, which is the majority Government owned national airline, Air Seychelles.
The Seychelles Supreme Court gave the country’s proposed new airline, Seychelles Airlines, some modicum of hope in its plight to take flight when it ruled at the end of September 2015 that the original registration of its name on the Register of Business Names was valid.
The proposed new airline’s name, Seychelles Airlines, has been the subject of some concern for a few years and there have been reports that its applications for an Air Operator’s Certificate and Air Transport Licence, which are considered by the Seychelles Civil Aviation Authority, have been suspended pending the resolution of the dispute regarding the registration of its business name.
It appears that the owners of the proposed new airline, Intershore Aviation, were granted registration of the company name Seychelles Airlines in August 2013. Soon after the company name was registered, the Seychelles Registrar of Companies requested that the company name be changed to one which excludes the name “Seychelles”. Intershore Aviation did not do this and the company name was then cancelled by the Registrar in December 2013.
In terms of Section 17(1) of the Registration of Business Names Act 6 of 1972 (“the Act”), the Registrar of Companies may refuse to register any firm, individual or corporation carrying on business under a business name:
(a.) which includes any word which in the opinion of the Registrar imports or suggests that the business enjoys the patronage of the President or the Government or imports any connexion with any local authority;
(b.) which includes the word “co-operative” or its equivalent in any other language or any abbreviation thereof;
(c.) which is identical with or is similar to that of a business or corporation existing, or is already registered under this Act or under the Companies Act, if in the opinion of the Registrar such registration would be likely to mislead the public;
(d.) which is, in the opinion of the Registrar, for any other reason whatsoever undesirable.”
The Act provides that if a business name has been registered, and registration ought to have been refused, the Registrar shall notify the party in writing and require that the business name be changed within a specified time period, failing which the Registrar may cancel the entry of the business name in the Register.
Despite the above, the Act also makes provision for the Registrar of Companies to, in his absolute discretion, permit the registration of a name which ought not to be registered, subject to such conditions as he may think fit.
The Act further provides that any person aggrieved by a decision of the Registrar under Section 17(6) may appeal to the Supreme Court.
This is precisely what Intershore Aviation did.
In the first hearing of the appeal, the Supreme Court noted that, while there was no requirement in terms of the Act for the Registrar to give reasons for a decision to cancel the registration of a business name, in this instance the Court was of the view that reasons should have been given to “make the decision-making process transparent”. The Registrar was therefore ordered to submit reasons for its decision to cancel the business name.
Following the submission of reasons by the Registrar, the Supreme Court upheld Intershore Aviation’s appeal.
In its reasons, the Registrar reportedly claimed that the business name, Seychelles Airlines, includes the name “Seychelles” and therefore suggests that the business enjoys the patronage of the government. It also reportedly claimed that the inclusion of the name “Seychelles” might mislead the public and airline stakeholders and regulators and convey the impression that the new airline is a subsidiary of the existing airline, Air Seychelles. The Court, however, found that these claims had not been established and were not sustainable. The Court also reportedly found that the Registrar had failed to apply its mind judiciously, or even at all, to the factors that were necessary to be considered in exercising the discretion given in terms of the Act.
It remains now to see whether the Registrar of Companies, represented by the Attorney General, will appeal the Supreme Court’s decision to the Seychelles Court of Appeal and whether Seychelles Airlines will be granted an Air Transport Licence, in due course.
Proprietors requiring further assistance with company name issues or other Intellectual Property matters can contact Adams & Adams for more information. The Seychelles recently adopted a new Industrial Property Act which brought about some interesting and important changes.
Written by Megan Dinnie, Associate and Lisa Nunes, Associate, Adams & Adams