Morarp Pty. Limited v Transference Trading Pty. Limited

This decision concerns an application by the Opponent, Transference Trading Pty. Limited, for leave to serve further evidence in opposition proceedings before the Registrar of Trade Marks, against an application by Morarp Pty. Limited for trade mark No. 1332409, "styrocon". The proceedings were adjourned to allow for the determination of this specific request, with the substantive opposition to be heard at a later date.

The legal issue before the Registrar's delegate was whether to grant the Opponent's request to serve further evidence, pursuant to Regulation 5.15(1)(b) of the Trade Marks Regulations 1995. This required the delegate to be satisfied that the Opponent had complied with the procedural requirements of the Regulations and that the admission of the further evidence was appropriate in the circumstances. The delegate considered established principles for admitting further evidence, including those from *Ladd v. Marshall*, and their application in Australian trade mark law, particularly in light of the *de novo* nature of appeals from the Registrar and the public interest in fully investigating substantial issues.

The delegate reasoned that the discretion to allow further evidence is broad, and in this instance, the evidence sought to be adduced was not irrelevant or lacking in credibility. Given the factual complexity of the matter and existing inconsistencies in the evidence, the delegate determined that admitting the further evidence would assist in a clearer and fuller investigation of the substantial issue. While granting the request as an indulgence, the delegate emphasised the need for a tight timeframe to avoid undue delay, setting specific periods for the service of further evidence and any responding evidence.

The Registrar's delegate granted the Opponent's request to serve further evidence and made directions for the future conduct of the proceedings, including timeframes for the service of evidence and a resumption of the adjourned opposition proceedings. The Opponent was ordered to pay the Applicant's costs of the adjourned hearing date due to the late notice of the request and the inconvenience caused.