Peter Vanas v Nutrasense Pty Ltd

This matter concerned an application by Nutrasense Pty Ltd for a late extension of time to file a notice of opposition to the registration of the trade mark OPTIARTHRITICAID, filed by Peter Vanas. The application for extension was made under section 52 and regulation 5.1 of the *Trade Marks Act 1995* (Cth), with the opposition period having expired on 24 November 2000. Nutrasense sought the extension on the ground of "circumstances beyond the control of the person applying for the extension of time," as provided by regulation 5.2(2)(c).

The delegate was required to determine whether Nutrasense had established a case for an extension of time based on circumstances beyond its control. This involved considering whether Nutrasense had formed a definite intention to oppose the trade mark application within the statutory opposition period, and whether the failure to file the notice of opposition was due to events that were genuinely beyond its control, akin to a force majeure. The delegate also had to consider the legal implications of Nutrasense being under administration and subsequently sold to new owners during the relevant period.

In reaching a decision, the delegate applied the principles established in *Atomic Skifabrik Alois Rohrmoser v The Registrar of Trade Marks* (1987) 7 IPR 551, which interpreted "circumstances beyond the control of the person concerned" as occurrences that neither the person nor their agent could prevent. The delegate found that while Nutrasense had been aware of the trade mark and had engaged in correspondence, there was insufficient evidence to establish a definite intention to oppose by the due date. Furthermore, the delegate concluded that despite the change in ownership and the period of administration, the corporate identity of Nutrasense had remained the same, and the administrator, acting as an agent of the company, had the power to file the opposition. Therefore, the failure to file was not considered a circumstance beyond the control of Nutrasense as a legal entity.

Consequently, the delegate refused Nutrasense's application for an extension of time to file a notice of opposition. The delegate also awarded costs against Nutrasense in favour of Mr Vanas, as he had been successful in opposing the extension application.