SwissEnergy Pharma GmbH v Swisse Wellness Pty Ltd

This matter came before Bianca Irgang, a Hearing Officer of the Trade Marks Hearings, concerning an application for an extension of time (EOT) by the Opponent, Swisse Wellness Pty Ltd, in opposition proceedings against the Holder, SwissEnergy Pharma GmbH. The Opponent sought to extend the time for filing evidence in support of its opposition.

The primary legal issue before the Hearing Officer was whether the Opponent had satisfied the requirements of Regulation 17A.34K of the relevant regulations to justify an extension of time for filing evidence. Specifically, the Hearing Officer had to determine if the Opponent had made all reasonable efforts to comply with filing requirements and was unable to do so despite acting promptly and diligently, or if exceptional circumstances justified the extension.

The Hearing Officer noted that the Opponent's application for an EOT was not supported by sworn evidence, relying instead on statements within the application and submissions. The Opponent attributed the delay to the resignation of its China-based Legal Director and China's zero-covid strategy, but failed to provide documentary evidence to substantiate these claims. The Hearing Officer found that the Opponent had not met the onerous test required by Regulation 17A.34K(2)(a) or (b). Despite refusing the EOT, the Hearing Officer exercised discretion under Regulations 21.15(4) and 21.19(1) to allow the Opponent's "Blanket declaration" to be considered as evidence, given the public interest, the time the Holder had access to it, and its probative value. The Holder was granted one month to respond to this declaration. As both parties had achieved some success, no order for costs was made.