ABP Technology Limited v Voyetra Turtle Beach Incorporated & Anor

ABP Technology Limited v Voyetra Turtle Beach Incorporated & Anor

The amendments were late because Voyetra could have pleaded the s11(1B) defence from the outset. No justification was provided for the lateness, and the delay was deliberately calculated to deprive ABP Tech of a potential defence. The judge erred in not treating the amendment as late and in not requiring an explanation for the delay. Permitting the amendment would sanction deliberate concealment and cause unjustifiable prejudice.

Parties
Appellant/claimant: ABP Technology Limited; Respondent/defendant: Voyetra Turtle Beach Incorporated; Respondent/defendant: Turtle Beach Europe Limited
Jurisdiction
England and Wales
Judgment Date
04 May 2022
Procedural Posture
Civil Appeal / Appeal From High Court Decision on Amendment of Pleadings
Outcome
Appeal allowed
Legal Topics
Trade Marks, Amendment of Pleadings, Civil Procedure—discretion, Revocation for Non Use
Intellectual Property Civil Procedure Trade Marks Amendment of Pleadings Civil Procedure—discretion Revocation for Non Use

Case Brief

Summary, issues, holding and outcome

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Parties

ABP Technology Limited

Appellant/claimant

Voyetra Turtle Beach Incorporated

Respondent/defendant

Turtle Beach Europe Limited

Respondent/defendant

Procedural Posture

Civil Appeal / Appeal From High Court Decision on Amendment of Pleadings

Legal Issues

  1. 1 Whether the High Court erred in permitting the respondents to amend their defence and add a counterclaim after a delay that deprived the claimant of the opportunity to seek revocation of a trade mark for non-use
  2. 2 Whether the lateness of the amendment was justified and whether the court properly exercised its discretion in allowing the amendment

Ratio Decidendi

The amendments were late because Voyetra could have pleaded the s11(1B) defence from the outset. No justification was provided for the lateness, and the delay was deliberately calculated to deprive ABP Tech of a potential defence. The judge erred in not treating the amendment as late and in not requiring an explanation for the delay. Permitting the amendment would sanction deliberate concealment and cause unjustifiable prejudice.

Court Disposition

Appeal allowed

Orders

  • Permission to amend the defence and add the counterclaim refused