legal procedures rules

[alham]

Hi all,

I am a small business being taken to the Patents County court for trade mark infringement and passing off. I have a good defence which was lodged with court in good time (as a defender in person I had my defence looked over by people who know and was advised that although my defence is pretty solid I will probably loose on legal procedures because the other party has bottomless pocket and they will drag the whole thing out until I give in). Anyway, EXACTLY 28 days after my defence they applied to court for a summary judgement on the grounds which twisted my defence and omitted certain paragraphs of the act thus presenting my defence in unfavourable light. I applied to the court for a permission to amend my defence and to turn it into counterclaim. Suddenly I received a letter from the other party informing me that "... the appropriate course is for you to submit draft amended pleadings to us , so that... our client decides whether it wishes to consent to the amendments." Is this right? My understanding that under the court rules it is the judge who gives such permissions, and only then the other party can object.

Any help will be greatly received - legal precedents I can understand, legal procedures are a mystery.

al

[SpringerSpaniel]

Re: legal procedures rules

Are you in Scotland or in England ?

In English civil procedure, you would be right that you are entitield to apply to the court for leave to amend, the decision is the court's not your opponnents, but under the CPR you shouls send a copy of your application to the other side and if they are content they then do not object and this can be presented to the court as agreed between the parties to the dispute.

[bluebottle]

Re: legal procedures rules

Being familiar with the Copyright, Designs & Patents Act 1988 from my days in the printing and publishing industry, who is the other side in your case and what exactly are they alleging?

[alham]

Re: legal procedures rules

I am in England. In 2002 they registered a Trade Mark that includes my trading name (which have been used by me since 1995!). In 2009 they registered a whole swathe of TMs that include different permutations of words used in my name. My defence includes challenges of later registrations on the absolute grounds. However, these challenges are contained WITHIN my defence particulars. One of the paragraphs in the application for summary judgement mentions that as I challenged validity of TMs but did not counterclaim this defence was closed to me. Hence my letter (it is just a letter, should I apply on N244 form?) which points out that I was advised to keep these challenges within my defence for the sake of expediency especially as this is not the only defence I am relying on.

Thank you

[SpringerSpaniel]

Re: legal procedures rules

I think you should apply on Form N244 for permission to amend you defence and make a counterclaim, as I think this would in fact be more correct.

You may wnat to contact the Bar pro-Bono unit and see if you can get any assisstance with the running of your claim. It is also worth checking if any of your insurance policies include cover for legal expneses as this can be a source of assistance

[alham]

Re: legal procedures rules

Thanks, I thought this may be the case. Unfortunately, IP disputes are so complicated and unpredictable that no one is prepared to touch them on pro-bono. I am member of FSB, but the legal cover excludes IP. So it's either give in and wave legs in the air or fight. But legal procedures will get me in the end, me thinks.

[SpringerSpaniel]

Re: legal procedures rules

Keep posting on here and we'll see what we can do to help. Several members here have run civil disputes in the courts.

[alham]

Re: legal procedures rules

Thank you, this thing will run and run.