Conquip Holdings Pty Ltd v S& a Restaurant Corp

This matter concerned an objection by S. & A. Restaurant Corp. (S & A Restaurant) to an application by Conquip Holdings Pty. Ltd. (Conquip) for an extension of time to lodge evidence in support of its opposition to two trade mark applications. Conquip had lodged notice of opposition to S & A Restaurant's trade mark applications for "BENNIGAN’S" and "BENNIGAN’S GRILL". Evidence in support of the opposition was initially due on 9 June 1995. Conquip was granted a first extension of time to 9 September 1995, and served some evidence on 8 September 1995. Conquip then sought a second extension of time to 9 December 1995. S & A Restaurant objected to this second request, arguing that Conquip had adequate time, had not acted with due diligence, and that the reasons provided were insufficient. The matter was heard by a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether to grant Conquip's second request for an extension of time to serve evidence in support of its opposition. This involved assessing whether Conquip had provided sufficient justification for the delay, particularly given that it was a second request for an extension. The delegate also had to consider the diligence of Conquip in preparing its evidence, the adequacy of the reasons provided for the extension, the relative inconvenience to both parties, and the public interest in the matter. The delegate was guided by established case law concerning extensions of time in trade mark opposition proceedings, including the principle of a "rising onus" to justify subsequent extensions.

In reaching a decision, the delegate considered submissions from both parties. S & A Restaurant argued that Conquip had ample time, had not acted diligently, and that the reasons for the extension were insufficient, referencing cases that emphasised the need for detailed explanations and the increasing burden of proof for subsequent extensions. Conquip, conversely, contended that the total period of nine months, if the extension was granted, was not excessive, and that it had been diligent in collating extensive information, including a questionnaire and statutory declarations. Conquip also argued that the public interest favoured a full disclosure of evidence to the Registrar. The delegate noted that while the reasons provided by Conquip were not highly detailed, they were more specific than a "bald statement" and indicated progress. Crucially, the delegate observed that all the evidence in support of the opposition had now been prepared and served.

The delegate concluded that Conquip had established a case for granting the extension. The delegate found that the total time allowed, nine months, was relatively short compared to other cases, and that Conquip had been diligent, especially as the remaining evidence had been compiled and served. The delegate also considered the inconvenience to S & A Restaurant, noting no undue hardship was indicated, and the public interest in allowing the Registrar to consider all relevant documentary evidence. Consequently, the delegate granted the three-month extension of time to 9 December 1995. The delegate also ordered that evidence in answer would be due three months from the date of the decision, and awarded costs to Conquip.