Brystie, Inc v Turtle Wax Inc

This matter concerns trade mark applications A590646(25) and A590647(24) for the mark TURTLE FUR, filed by Brystie Inc. of Vermont, USA. Turtle Wax Inc. of Illinois, USA, lodged oppositions to these applications. The core of the dispute revolved around the repeated extensions of time sought by Turtle Wax Inc. to file evidence in support of its opposition, which significantly delayed the proceedings.

The legal issues before the delegate of the Registrar of Trade Marks were whether to grant further extensions of time for Turtle Wax Inc. to serve its evidence, and subsequently, following the withdrawal of the opposition, whether to award costs to Brystie Inc. The delegate was required to consider the protracted history of the opposition, the reasons for the delays, and the impact on the applicant.

The delegate noted that while the opposition had significantly delayed the trade mark applications, the extensions for serving evidence had been granted on the basis of ongoing settlement negotiations between the parties, to which Brystie Inc. was also a party and had, to some extent, accommodated. However, Turtle Wax Inc. ultimately withdrew its opposition without making any representations regarding Brystie Inc.'s application for costs. Applying the principle that a party withdrawing an opposition is normally considered to have been unsuccessful, the delegate found in favour of the trade mark applicant, Brystie Inc.

Accordingly, the delegate awarded costs to Brystie Inc.