Victron B v v Tandy Corporation

This decision concerns an application by Tandy Corporation for an extension of time to oppose Trade Mark Application 513150, filed by Victron B.V. The application sought to register the trade mark VICTRON for uninterruptible power systems and other electronic components. The application was advertised as accepted on 6 December 1990, and the statutory period for opposition under section 49(1) of the Trade Marks Act 1955 was three months from that date. Tandy sought an extension of this opposition period on 15 March 1991, which was beyond the initial three-month period and also beyond the further three-month period available under section 49(1) if applied for within the initial period. Tandy therefore sought to rely on section 131 of the Act, which allows the Registrar to extend time for acts or steps not taken due to circumstances beyond the control of the person concerned or an error or action by an officer of the Trade Marks Office.

The legal issues before the Delegate of the Registrar of Trade Marks were whether Tandy had established circumstances that would justify an extension of time under section 131 of the Trade Marks Act 1955. Specifically, the Delegate had to determine if the events leading to Tandy's failure to lodge a notice of opposition within the prescribed time constituted "circumstances beyond the control of the person concerned" or an "error or action on the part of an officer or person employed in the Trade Marks Office." The facts presented by Tandy included a delay in receiving advice from their usual attorneys due to a conflict of interest, the absence of their in-house attorney on vacation, and a delay in receiving advice from an overseas searching body.

The Delegate reasoned that Tandy had not demonstrated a case for an extension under section 131. The Delegate noted that section 131 is a force majeure provision, intended for occurrences that neither the person concerned nor their agent could prevent. The Delegate found that the delay in receiving advice from the overseas searchers and the absence of Tandy's in-house attorney were not exceptional circumstances that could not have been prevented. Crucially, the Delegate held that the failure of Tandy's usual attorneys to provide timely advice, while an event Tandy could not control, was a consequence of Tandy's own management of its affairs, including its policy of requiring management approval for trademark matters and its failure to direct its attorneys to seek an extension under section 49. The Delegate concluded that Tandy had allowed itself to be placed in a position where it was still awaiting legal advice at the end of the statutory opposition period, and therefore had to accept the consequences.

Accordingly, the Delegate refused Tandy Corporation's application for an extension of time to lodge a notice of opposition. The decision stated that, subject to any appeal, Trade Mark Application 513150 was able to proceed to registration upon payment of the appropriate fee.