Johnson & Johnson v Unilever Australia and L&K Rexona Pty Ltd

This decision concerns an application by Unilever Australia Limited and L&K Rexona Pty Ltd (the opponents) for an extension of time to serve evidence in support of their opposition to Johnson & Johnson's (the applicant) trade mark application for CLINICLENS. The applicant's trade mark application was advertised for acceptance on 2 January 1992, and the opponents lodged their notice of opposition on 1 May 1992. Under the regulations, evidence in support of the opposition was due for service on 1 August 1992.

The legal issues before the delegate of the Registrar of Trade Marks were whether to grant the opponents' belated application for a two-month extension of time to serve their evidence, and whether the circumstances constituted "special circumstances" as required by Regulation 69(b) for such late applications. The opponents initially sought an extension to 1 October 1992, citing a heavy workload and inadvertent oversight by a legal clerk as the reasons for the delay. The applicant argued that the opponents had not provided sufficient reasons for the delay and that Regulation 69(b) acted as a fetter on the Registrar's discretion under Section 130 of the Trade Marks Act.

The delegate considered the submissions of both parties, referencing various case authorities. While acknowledging the broad discretion granted by Section 130 of the Trade Marks Act to extend time, the delegate noted that this discretion is qualified by Regulation 69(b) when an application is made belatedly. The delegate found that the opponents had failed to provide any reasons as to why the original time allowed for service of evidence was insufficient, which is a prerequisite for granting an extension under Section 130. The delegate also considered the "special circumstances" requirement of Regulation 69(b), noting that while a heavy workload and administrative oversight could contribute to an error or omission, in the current economic climate, a heavy workload might be considered normal office circumstances rather than "special."

Ultimately, the delegate refused the opponents' application for an extension of time because no reasons were provided to justify the delay. Consequently, the delegate did not need to consider the matter of special circumstances under Regulation 69(b) or the public interest and balance of convenience factors. The delegate ordered that each party bear its own costs.