Happy Skincare Pty Ltd ATF Breckell Family Trust v Happy Skin Co Pty Ltd

This decision concerns an opposition by Happy Skincare Pty Ltd ATF Breckell Family Trust (the Opponent) to the registration of trade mark application number 1963096 by Happy Skin Co Pty Ltd (the Applicant). The Opponent sought an extension of time to file its Statement of Grounds and Particulars, which was filed one day after the prescribed deadline. The matter came before a delegate of the Registrar of Trade Marks.

The primary legal issue was whether the Opponent had established sufficient grounds to justify an extension of time for filing its Statement of Grounds and Particulars. Specifically, the Opponent relied on the ground of an "error or omission" under regulation 5.9(4)(a) of the Trade Marks Regulations 1995 (Cth). The Applicant contested the extension, arguing that supplementary declarations filed by the Opponent were out of time and should not be considered, or alternatively, that the request for extension should be treated as filed on the later date of the supplementary declarations.

The delegate considered the established principles for extensions of time, noting that the Opponent bears the burden of establishing an appropriate case, and that the failure to file cannot itself be the error or omission. The delegate found that the error or omission relied upon was a misunderstanding between the Opponent and its attorney regarding the filing deadline for the Statement of Grounds and Particulars. The Opponent's attorney mistakenly assumed a later deadline based on an earlier filing of the Notice of Intention to Oppose, when in fact the true deadline was earlier. This error was compounded by the attorney not receiving instructions to act until after the Notice of Intention to Oppose was filed, and a subsequent delay in the attorney's internal procedures being triggered. The delegate determined that the supplementary declarations, while filed after the initial request, were permissible and provided necessary clarification of the initial error.

The delegate granted the extension of time. The delegate found that the error or omission relied upon by the Opponent justified the extension, and that the circumstances did not warrant treating the request as filed on the later date of the supplementary declarations. The delegate considered the Applicant's objections to the supplementary declarations and found them unpersuasive, noting that the legislation allows for flexibility in considering material and that the Applicant had not demonstrated practical injustice.