Aamco Transmissions v Fluidrive Corporation

Aamco Transmissions Inc (Aamco) applied to remove trade mark registration 327549 from the Register under section 23 of the *Trade Marks Act 1955* (Cth) (the repealed Act). The grounds for removal were non-use of the trade mark. Fluidrive Corporation Pty Ltd (Fluidrive), the registered proprietor, lodged a notice of opposition. Aamco served its evidence in support on 19 December 1995, making Fluidrive's evidence in answer due on 19 March 1996. Subsequently, the trade mark was assigned to Joseph Schneider. On 19 March 1996, an application for a three-month extension of time to lodge evidence in answer was filed in Mr Schneider's name. A further application for an extension of time, also to 19 June 1996, was lodged in Fluidrive's name on 9 April 1996, which Aamco opposed. The matter came before a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether to grant an extension of time for Fluidrive to lodge its evidence in answer. This involved considering the validity of the applications for extension, particularly the application lodged by Mr Schneider on 19 March 1996, and the application lodged by Fluidrive on 9 April 1996. The delegate also had to assess whether the grounds provided for the extension, namely the timing of the applicant's evidence service around the Christmas/New Year break and the need for further investigation and preparation of evidence, constituted sufficient reason to grant an extension under section 130 of the repealed Act and regulation 69 of the *Trade Marks Regulations 1995* (Cth).

The delegate reasoned that the *Trade Marks Act 1995* (Cth) preserved proceedings commenced under the repealed Act, meaning the *Trade Marks Act 1955* (Cth) applied. The delegate found that the application for extension lodged by Joseph Schneider on 19 March 1996 was a valid application, as there was no restriction in the Act or Regulations on who could apply for an extension of time. Consequently, the later application lodged by Fluidrive on 9 April 1996 was considered immaterial. In determining whether to grant the extension, the delegate considered the grounds provided, the balance of convenience, and the public interest. While acknowledging that the timing of service was not a strong ground, the delegate found some substance in the need for further time to prepare evidence following investigations, particularly given potential complexities in record-keeping and obtaining declarations. The delegate concluded that the owner of the mark would suffer greater inconvenience if denied the opportunity to serve its evidence, and that the public interest favoured allowing parties a fair opportunity to present their evidence.

Accordingly, the delegate allowed the extension of time sought by Fluidrive. Costs were awarded to Fluidrive in relation to the extension application.