Shamar Pty Ltd v Coogi Australia Pty Ltd

This matter concerned an application by COOGI AUSTRALIA PTY LTD (Coogi) for an extension of time to lodge a notice of opposition to the registration of trade mark application number 638388 by SHAMAR PTY LTD (Shamar). The application was heard by a delegate of the Registrar of Trade Marks.

The central legal issue was whether Coogi's notice of opposition had been lodged by the due date of 29 February 1996, or if an extension of time was warranted under section 131(1)(a) of the Trade Marks Act 1955. Coogi contended that its notice of opposition was lodged in the late lodgment box at the Australian Industrial Property Organisation (AIPO) state office on 29 February 1996, but that it was not recorded as lodged until 1 March 1996. The delegate was required to determine the credibility of the evidence presented by Coogi, including statutory declarations from its trade mark attorneys and courier, against the evidence of AIPO's internal procedures and records.

The delegate considered the evidence, including statutory declarations from Coogi's representatives and the courier, Mr Ellis, who stated he deposited the package in the late box on 29 February 1996. However, the delegate also considered evidence from AIPO staff regarding their procedures for emptying the late box and recording lodgments. The delegate found it highly improbable that the package became lodged in the box's flap or was otherwise mislaid within the office, particularly given the number of other documents successfully processed. The delegate noted that while Mr Ellis's declaration was likely honestly made, it was made some nine weeks after the event and could be subject to memory flaws. The delegate also observed that the AIPO's late lodgment statistics for 1 March 1996 did not include any documents from Coogi's attorneys, and that the notice of opposition was ultimately recorded as lodged on 1 March 1996.

The delegate concluded that it was more likely that the package was delivered after the late box had been emptied on the morning of 1 March 1996. Accordingly, the delegate found that the notice of opposition was lodged out of time and was therefore not valid. No orders were made as the delegate was determining the validity of the opposition itself.