International Data Group, Inc

This matter concerns a trade mark application by International Data Group, Inc. for the word GAMESTAR. The applicant lodged the application on 11 January 1999, but underpaid the filing fee by $20. The Trade Marks Office notified the applicant's agents of the shortfall on 21 January 1999, stating that the filing date would be the date the outstanding fee was paid. The agents paid the balance on the same day and requested the original filing date be retained.

The legal issues before the delegate of the Registrar of Trade Marks were whether the payment of the application fee constituted a "relevant act" and whether an extension of time could be granted under section 224 of the *Trade Marks Act 1995* to preserve the original filing date. Specifically, the delegate had to determine if the payment of the application fee was an act required by the Act to be done "within a certain time" for the purposes of section 224.

The delegate reasoned that while the payment of the application fee could be considered a "relevant act" under section 224(8), it was not an act required to be done within a certain time. The delegate noted that section 223(5) and Regulation 21.23 govern the situation of underpaid fees, stipulating that the filing date will be the date the fee is fully paid if the Office notifies the applicant of the shortfall within 14 days. Crucially, there is no time limit imposed by the Act or Regulations for the applicant to rectify such an underpayment once notified. Therefore, section 224, which provides for extensions of time for acts required to be done within a certain time, was not applicable.

Consequently, the delegate refused the application for an extension of time. The delegate determined that the filing date for the GAMESTAR trade mark application was 21 January 1999, the date on which the balance of the application fee was paid.