MONSTER ENERGY COMPANY v OX GROUP GLOBAL PTY LIMITED [2016] NZHC 2124

MONSTER ENERGY COMPANY v OX GROUP GLOBAL PTY LIMITED [2016] NZHC 2124

Leave granted: the High Court has jurisdiction under s172(3)(a) to permit an additional ground of objection where evidence emerged after the hearing supporting that ground; the correspondence and affidavit relied on were new and sufficiently relevant; permitting the amendment serves the interests of justice, will not cause undue prejudice because reply and timetable orders can address any prejudice, and avoids needless duplicate proceedings before the Assistant Commissioner.

Citation
[2016] NZHC 2124
Parties
Appellant/opponent: Monster Energy Company; Respondent/applicant: Ox Group Global Pty Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 September 2016
Procedural Posture
Trade Marks Appeal Under Trade Marks Act 2002 / Interlocutory Application to Add Ground (pre Hearing)
Outcome
Application granted in part: leave granted to add s32(2) 'no intention to use' ground and leave granted to adduce the supporting evidence; timetable set for respondent and applicant evidence
Legal Topics
Intention to Use, Opposition to Registration, Leave to Amend Grounds on Appeal, Adduction of Fresh Evidence
Trade Mark Law Intellectual Property Civil Procedure Intention to Use Opposition to Registration Leave to Amend Grounds on Appeal Adduction of Fresh Evidence

Case Brief

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Parties

Monster Energy Company

Appellant/opponent

Ox Group Global Pty Limited

Respondent/applicant

Procedural Posture

Trade Marks Appeal Under Trade Marks Act 2002 / Interlocutory Application to Add Ground (pre Hearing)

Legal Issues

  1. 1 Whether the High Court has jurisdiction under s172(3)(a) to permit a new ground of objection (s32(2) no intention to use) on appeal
  2. 2 Whether the evidence relied on by appellant is sufficiently new, cogent and material to permit amendment
  3. 3 Whether permitting the new ground would cause significant prejudice or require a re-trial or first instance decision

Ratio Decidendi

Leave granted: the High Court has jurisdiction under s172(3)(a) to permit an additional ground of objection where evidence emerged after the hearing supporting that ground; the correspondence and affidavit relied on were new and sufficiently relevant; permitting the amendment serves the interests of justice, will not cause undue prejudice because reply and timetable orders can address any prejudice, and avoids needless duplicate proceedings before the Assistant Commissioner.

Court Disposition

Application granted in part: leave granted to add s32(2) 'no intention to use' ground and leave granted to adduce the supporting evidence; timetable set for respondent and applicant evidence

Orders

  • Leave granted to Monster Energy Company to add a s32(2) 'no intention to use the mark applied for' ground of objection
  • Special leave granted to adduce the evidence filed in support of the application to add the ground