Jerry a Dorminy v Donald Richard Algie

This matter concerns an application by Jerry A. Dorminy, doing business as Hog's Breath Saloon, for an extension of time to serve evidence in support of his opposition to trade mark application number 517452, filed by Donald Richard Algie. The opposition relates to an application for restaurant services in Class 42. Dorminy's opposition was lodged on 25 July 1990, with evidence in support due by 25 October 1990. Dorminy sought a three-month extension to 25 January 1991, citing the need for further time to collect and prepare evidence. Algie objected to this extension.

The delegate was required to determine whether Dorminy had made out a proper case for an extension of time, considering the public interest and the adequacy of the time already allowed for evidence preparation. The delegate also had to weigh the potential detriment to Dorminy if the extension was refused against the inconvenience to Algie due to the delay. Key legal principles applied included the requirement for a party seeking an extension to demonstrate a "proper case" justifying it, as per *Vangedal-Nielsen and others v Smith*, and the importance of considering the public interest in allowing evidence that clarifies the likelihood of deception or confusion, as per *Pioneer Hi-Bred Co v Hy-Line Chicks Pty Ltd*. The delegate also acknowledged the common experience that statutory time limits for evidence gathering in opposition proceedings are often insufficient, referencing *Mitty's Authorised Newsagency v The Registrar of Trade Marks*.

The delegate found that Dorminy had adequately discharged the onus to make out a proper case, noting that the reasons provided for the extension were sufficiently detailed and indicated active pursuit of evidence. The delegate also considered the public interest, acknowledging Dorminy's US registration for a similar mark and the potential for deception or confusion, which are serious matters. While Algie claimed disadvantage from commercial arrangements being delayed, the delegate found that resolving proprietorship issues was in both parties' interests and that extensions of nine to twelve months are not uncommon in such cases, particularly with overseas parties involved. The delegate concluded that the public interest favoured allowing the extension to ensure a clearer picture of rival marks.

Consequently, the delegate directed that the time prescribed by regulation 43 be extended to 25 January 1991. No award of costs was made, as neither party had made a claim for them.