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Amendments to Trademark Laws

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Jul 31, 2023 (Newsletter Issue 7/23)
Australia
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Evidentiary Burden for Extension of Time Lowered


Effective as of July 31, 2023, the Trade Marks Office’s interpretation of the ‘prompt and diligent’ grounds for extension of time (EOT) for filing evidence in opposition proceedings has been broadened.

Regulations 5.15(2)(a), 9.18(2)(a), 17A.34K(2)(a) and 17A.48T(2)(a) of the Trade Marks Regulations 1995 (Cth) provide a basis for EOT to a party who can show that despite making all reasonable efforts to comply with the evidence filing date, and despite acting promptly and diligently, they have been unable to meet the deadline. The office has historically interpreted these provisions very strictly.

This change in interpretation is to recognise that while the provision is strict and requires parties to demonstrate reasonableness, promptness, and diligence, it doesn't impose a standard of perfection and permits remedy in certain situations that occasionally arise in preparing evidence. What's required of parties is that they can demonstrate a reasonable plan was executed well, with no significant unexplained delays. Where simple errors on the part of a party prevent evidence being filed on time, an extension may still be appropriate.

This is expected to significantly lower the evidentiary burden on parties seeking an EOT, and to permit EOT in certain situations that may not have been granted in the past. This would include:

- Mere slips
- Errors in recording follow up dates
- Missing pages
- Unsigned declarations
- Technical errors encountered when submitting evidence
- Other genuine errors that are causative of a failure to file when they are in the context of a reasonable plan for the preparation of evidence otherwise executed promptly and diligently.

As always, a party must seek an EOT as soon as practicable after discovering the error.

For more information, please click here.

Source: www.ipaustralia.gov.au