Guardian Family Care Chemists Australia Ltd v Kellog Company

This matter concerned an objection by Kellog Company (the trade mark applicant) to an application by Guardian Family Care Chemists Australia Ltd (the opponent) for an extension of time to serve evidence in support of its opposition to the registration of trade mark application no. 570577. The trade mark application for the mark GUARDIAN was lodged in January 1992 and accepted in March 1994. The opponent lodged a notice of opposition in June 1994.

The delegate of the Registrar of Trade Marks was required to determine whether to grant the opponent's application for a one-month extension of time to serve its evidence in support of its opposition, which had been filed late on 18 June 1997, seeking an extension until 17 July 1997. The key legal issues involved assessing whether sufficient reasons had been provided for the delay, considering the relative inconvenience to the parties, and evaluating the public interest, particularly in light of the protracted settlement negotiations that had occurred between the parties over approximately three years.

The delegate reasoned that the opponent had discharged the onus of providing sufficient reasons for the extension, citing an office error that caused the initial late application and the significant time spent on settlement negotiations as mitigating factors for the overall delay. The delegate noted that the trade mark applicant had largely not objected to previous extensions, leading the opponent to believe potential objections had lapsed. While acknowledging the applicant's argument regarding the total delay, the delegate found it inequitable to penalise the opponent for the protracted negotiations, which were a significant factor in the delay. The delegate also considered the public interest, noting that allowing full presentation of evidence in a matter involving potential public health and safety issues served the public interest best.

Ultimately, the delegate granted the opponent's application for a one-month extension of time, deeming the evidence in support to have been served and filed within the extended period. The delegate then set a date for the trade mark applicant's evidence in answer and awarded costs to the opponent.