ABP Technology v Voyetra Turtle Beach [2022] EWCA Civ 594
This was an appeal of a case management decision to allow certain amendments to a statement of case in a trade mark infringement claim. Both sides use the mark STEALTH in relation to headphones for computer gaming. The Court of Appeal allowed the appeal and refused the Respondents’ application to amend the Defence and add a counterclaim.
Each of the amendments sought by the Respondents relied on their acquisition of a trade mark for STEALTH that pre-dated the Claimant’s trade mark registrations. Relying on that mark, they sought to add a defence under s. 11(1B) of the Trade Marks Act 1994 and a counterclaim for infringement of the earlier mark. The Claimant objected to the amendments on discretionary grounds, namely that the amendments could and should have been made earlier. The Court of Appeal held that Miles J was wrong to permit the amendments and allowed the appeal. In doing so, the Court of Appeal held that the Respondents had attempted to take advantage of the process of civil justice itself and that to permit the application to amend, both the defence and add the counterclaim, would have been to sanction an act of deliberate concealment by the party seeking to be permitted to amend.
Chris Aikens appeared for the Appellant and Benet Brandreth QC appeared for the Respondents.