Golden Buffalo Group Pty Ltd v Posh Lifestyle Pte Pty Ltd

This matter concerned an application by Posh Lifestyle Pte Ltd for an extension of time to file a Notice of Intention to Defend in opposition proceedings initiated by Golden Buffalo Group Pty Ltd. The opposition related to the registration of trade mark application number 2127353 in class 43. The application was heard by Nicholas Barbey, Delegate of the Registrar of Trade Marks.

The primary legal issue before the Delegate was whether Posh Lifestyle Pte Ltd had established sufficient grounds to warrant an extension of time for filing its Notice of Intention to Defend, pursuant to section 52A of the *Trade Marks Act 1995* (Cth) and regulations 5.13, 5.13A, and 5.13B of the Regulations. Specifically, the Delegate had to determine if the applicant's failure to file within the prescribed period was due to an error or omission, or circumstances beyond its control, as required by regulation 5.13A(4).

The Delegate reasoned that the decision to grant an extension of time is discretionary. Even if a ground under regulation 5.13A(4) is established, the Registrar must be satisfied that the exercise of discretion is justified. Furthermore, as the application for an extension was made after the initial deadline, the Registrar must also be satisfied that there is sufficient reason for the delay. In this instance, the Delegate found that Posh Lifestyle Pte Ltd had not established that its failure to file the Notice of Intention to Defend by the deadline was the result of an error or omission, or circumstances beyond its control, as contemplated by regulation 5.13A(4).

Consequently, the Delegate refused to grant the requested extension of time.