Virtual Reality and Virtuality v W. Industries Limited

This matter concerned an opposition by W Industries Limited, a British company, to a trade mark application by Virtual Reality and Virtuality, a New South Wales business, for the mark VIRTUALITY in class 9. The application was advertised for acceptance on 4 June 1992, initiating a three-month opposition period. W Industries successfully applied for an extension of this period, lodging its notice of opposition on 4 November 1992.

The legal issues before the delegate of the Registrar of Trade Marks were whether to grant further extensions of time for W Industries to serve evidence in support of its opposition, and ultimately, whether to dismiss the opposition due to the failure to provide such evidence. The court was required to consider the principles governing extensions of time for evidence, particularly in light of repeated delays and the applicant's objections, and the criteria for granting special leave to adduce further evidence after the time for service had expired.

The delegate noted that collecting evidence is a time-consuming task and that three months is often inadequate, supporting the allowance of reasonable extensions when a proper case is made out. However, despite multiple extensions and warnings, W Industries failed to serve its evidence or provide a statutory declaration explaining further delays as directed by a previous delegate. Consequently, the time for serving evidence expired on 3 February 1994. On the day before the hearing, W Industries sought special leave to adduce further evidence, which was not accompanied by the required statutory declaration. Applying the tests for admitting further evidence, namely that it could not have been obtained with reasonable diligence earlier, is likely to have an important effect, and is credible, the delegate found that W Industries had not satisfied these criteria. The delegate also noted the opponent's "careless disregard for the orderly conduct of the matters" and the serious inconvenience occasioned to the applicant.

As W Industries could not establish its grounds of opposition without evidence, the opposition was dismissed. The delegate awarded costs to the applicant, Virtual Reality and Virtuality.