ABP TECHNOLOGY LIMITED v VOYETRA TURTLE BEACH, INC.

ABP TECHNOLOGY LIMITED v VOYETRA TURTLE BEACH, INC.

The court dismissed the claimant's application for summary judgment, finding that the defence of honest concurrent use was arguable and should be determined at trial with fuller evidence. The court permitted the defendants to amend their defence and counterclaim to plead certain statutory defences and an infringement counterclaim based on their acquisition of mark-250, but refused permission to amend in relation to the invalidity counterclaim and reliance on post-acquisition events for honest concurrent use, as these were not realistically arguable under the statutory requirements.

Parties
Claimant: ABP Technology Limited; First Defendant: Voyetra Turtle Beach, Inc.; Second Defendant: Turtle Beach Europe Limited
Jurisdiction
England and Wales
Judgment Date
19 November 2021
Procedural Posture
Trade Mark Infringement and Counterclaim / Ruling on Summary Judgment Application and Application for Permission to Amend Defence and Counterclaim
Outcome
Claimant's application for summary judgment dismissed; Defendants' application to amend defence and counterclaim allowed in part and refused in part.
Legal Topics
Trade Mark Infringement, Honest Concurrent Use, Summary Judgment, Amendment of Pleadings, Invalidity of Trade Marks, Revocation for Non Use
Intellectual Property Law Trade Mark Infringement Honest Concurrent Use Summary Judgment Amendment of Pleadings Invalidity of Trade Marks Revocation for Non Use

Case Brief

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Parties

ABP Technology Limited

Claimant

Voyetra Turtle Beach, Inc.

First Defendant

Turtle Beach Europe Limited

Second Defendant

Procedural Posture

Trade Mark Infringement and Counterclaim / Ruling on Summary Judgment Application and Application for Permission to Amend Defence and Counterclaim

Legal Issues

  1. 1 Whether the defence of honest concurrent use is available to the defendants and has real prospect of success
  2. 2 Whether the defendants should be permitted to amend their defence and counterclaim to rely on an earlier acquired trade mark (mark-250)
  3. 3 Whether the use of the STEALTH mark by the defendants falls within the specification of mark-250

Ratio Decidendi

The court dismissed the claimant's application for summary judgment, finding that the defence of honest concurrent use was arguable and should be determined at trial with fuller evidence. The court permitted the defendants to amend their defence and counterclaim to plead certain statutory defences and an infringement counterclaim based on their acquisition of mark-250, but refused permission to amend in relation to the invalidity counterclaim and reliance on post-acquisition events for honest concurrent use, as these were not realistically arguable under the statutory requirements.

Court Disposition

Claimant's application for summary judgment dismissed; Defendants' application to amend defence and counterclaim allowed in part and refused in part.

Orders

  • Claimant's application for summary judgment is dismissed.
  • Defendants are permitted to amend their defence and counterclaim as specified in the judgment.