Delta Corporate Identity, Inc v Sky Channel Pty Limited

Delta Corporate Identity, Inc. (Delta) applied for a late extension of time to file a Notice of Opposition to a trade mark application by Sky Channel Pty Limited (Sky) for the mark SKY REWARDS. Delta filed multiple applications for extensions of time, with the initial applications being based on grounds that were later deemed invalid by the delegate of the Registrar of Trade Marks. The dispute centred on whether Delta should be granted a further extension of time to file its opposition, despite the prescribed period and an initial extension having expired.

The delegate was required to determine whether Delta had established a valid ground for a late extension of time to file its Notice of Opposition, particularly in light of the expiry of the statutory period for opposition. This involved considering whether Delta had a settled intention to oppose the trade mark application within the original timeframe, and whether an error or omission by its agent constituted a sufficient reason for the delay in filing the opposition. The delegate also had to assess whether the application met the formal requirements of the Trade Marks Regulations and whether both parties had been afforded an opportunity to make representations.

The delegate reasoned that for an extension application made after the prescribed period, the applicant must demonstrate a settled intention to oppose within the original period and a causal link between events and the failure to file. Applying this, the delegate found that Delta had indeed maintained a settled intention to oppose, even if contingent on the outcome of negotiations, citing previous decisions such as *Cognotec Limited and Cognos Incorporated* and *AgDirect Sales v Agro-K*. The delegate also accepted that Delta's agent's misinterpretation of the Trade Marks Regulations constituted an error under regulation 5.2(2)(b), which causally led to the failure to file the Notice of Opposition in time. However, the delegate found that the ground under regulation 5.2(2)(c) was not sufficiently supported.

The delegate granted the extension of time based on the ground of error by Delta's agent under regulation 5.2(2)(b), allowing Delta to file its Notice of Opposition. The delegate treated Delta's second and third extension applications as a single application due to their overlapping periods and similar nature.