Uk Channel Management Ltd v E! Entertainment Television Inc & Anor

Amendments to a statement of case should generally be permitted under CPR 17.1(2) where they do not fall foul of CPR 3.4, provided that any prejudice to the opposing party can be compensated by costs and the public interest in the administration of justice is not significantly harmed. Amendments which add precision to an existing case, identify particular instances of broadly pleaded conduct, or clarify features of an existing mark do not necessarily introduce a new claim. An amendment application is not ordinarily the proper occasion to determine disputed facts or an estoppel. Permission to amend permits the claim to be advanced in amended form; it does not determine whether the pleaded relief will ultimately be granted.

UK Channel Management Ltd brought claims for trade mark infringement and passing off concerning the proposed launch by E! Entertainment Television Inc and E Entertainment UK Ltd of a television channel called “The Style Network”. The claimant sought permission to amend its Particulars of Claim and prayers for relief shortly before an expedited trial. The proposed amendments addressed programming practices, use of the name “Style”, fonts, logos, colour schemes and the defendants’ Community and UK logos.

The defendants opposed the application on grounds including inadequate particularity, prejudice, enlargement of the claim, alleged resiling from an earlier position, and duplication of Community trade mark registration proceedings. The central issue was whether the amendments should be permitted.

1. Amendment principles. The power under CPR 17.1(2) should ordinarily be exercised in favour of amendments which do not fall foul of CPR 3.4. The court must consider whether the opposing party will suffer prejudice that cannot be compensated by costs and whether the public interest in the administration of justice will be significantly harmed.
2. The proposed allegations concerning programming zones, announcements, investment in names, fonts, logos and colour were connected with the claimant’s existing pleaded case. They either concerned matters already evidenced, developments which could fairly be addressed within the existing timetable, or elaborated the claimant’s existing allegations about its marks and get-up. The defendants could seek further particulars if the pleading and evidence did not identify the case sufficiently.
3. The amendments concerning the defendants’ Community trade mark and logo did not introduce duplicative proceedings. The original Particulars of Claim already raised complaints concerning the Community logo, likelihood of confusion and infringement of the claimant’s Community trade mark. The decision in Muhlens [2006] ETMR 775 did not justify refusing the amendments. Any wider issue concerning duplication of proceedings required a properly noticed application.
4. An amendment application was not the appropriate occasion to make factual findings or determine an estoppel based on correspondence. The amendments did not substantially enlarge the action, but provided more precise examples of conduct falling within the broadly pleaded complaint. The order permitting amendment recorded the claimant’s acknowledgement that it did not resile from its earlier letter, while leaving the defendants free to argue at trial that particular relief was inappropriate.
5. All amendments were allowed. The amended statement of case was treated as served at 4.00 pm on 21 November 2007. The defendants were given permission to serve an amended Defence by 5 December, the claimant to serve a Reply by 12 December, and the time for evidence in reply was extended to 17 December 2007.