Skinfix Pty Ltd v Skinfix Inc

This matter concerned an application by the Opponent for an extension of time to file evidence in support of its opposition to a trade mark application by Skinfix Pty Ltd (the Applicant). The application was heard by Nicholas Smith, a Hearing Officer and Delegate of the Registrar of Trade Marks.

The legal issue before the court was whether the Opponent had satisfied the requirements of Regulation 5.15 of the relevant regulations, which governs extensions of time for filing evidence. Specifically, the court had to determine if the Opponent had demonstrated either that it had made all reasonable efforts to comply with filing requirements and was unable to do so despite acting promptly and diligently, or that exceptional circumstances justified an extension. The onus was on the Opponent to establish at least one of these grounds.

The court found that the Opponent's evidence in support of its request for an extension was entirely unsworn and lacked supporting documentation. The Opponent relied on statements within its application and a letter from its consultant, which cited personal illness (Covid-19) and computer issues as reasons for delay. However, the court noted the absence of any documentary evidence to substantiate these claims, such as medical diagnoses or proof of IT repair engagement. Applying the principles from *Fonterra Co-Operative Group Ltd v Meiji Dairies Corporation*, the court concluded that the Opponent had not met the onerous test required by Regulation 5.15(2)(a) or (b).

Consequently, the Delegate refused to grant the extension of time. The period for filing evidence in answer had expired on 27 September 2022, and any material filed thereafter was not considered evidence in support. As neither party sought costs, no order for costs was made.