Calddran Pty Limited and Sisbro Holdings Pty Limited T/as Wild Turkey v Pieve Pty Ltd

This matter concerns an opposition by Pieve Pty Ltd to a trade mark application by Calddran Pty Limited and Sisbro Holdings Pty Limited t/as Wild Turkey. The dispute arose from Pieve Pty Ltd's application for an extension of time to serve its notice of opposition, which was lodged after the statutory deadline. The decision was made by a Delegate of the Registrar of Trade Marks.

The primary legal issue before the Delegate was whether the grounds provided by Pieve Pty Ltd for its late lodgment of the notice of opposition fell within the scope of section 131(1) of the relevant Act. Specifically, the Delegate had to determine if the delay was attributable to "circumstances beyond the control of the person concerned" (s 131(1)(a)) or an "error or action on the part of an officer or person employed in the Trade Marks Office" (s 131(1)(b)).

The Delegate reasoned that the opponent's stated reasons, including a lack of familiarity with the required formal notice of opposition and the desire to gather evidence or negotiate a settlement, did not constitute circumstances beyond its control. Citing established case law, the Delegate emphasised that section 131 is a force majeure provision intended for exceptional situations and not for accommodating delays in evidence gathering or settlement negotiations. Furthermore, the Delegate found no error or action by a Trade Marks Office employee, as the opponent's initial letter was not in substantial compliance with the required form, and the Office had provided subsequent guidance.

Consequently, the Delegate concluded that Pieve Pty Ltd had not established a case under either limb of section 131(1) of the Act. Accordingly, the application for an extension of time to lodge the notice of opposition was refused.