Viva Holidays II Limited v Vivaticket SpA

Vivaticket SpA (the Opponent) sought an extension of time to file a notice of intention to defend in opposition proceedings concerning the extension of protection of an international registration designating Australia, held by Viva Holidays II Limited (the Holder). The opposition concerned the trade mark VIVATICKET.

The primary legal issue before the Hearing Officer was whether to grant an extension of time for the Holder to file its notice of intention to defend. This involved considering the circumstances that led to the late filing and whether the relevant provisions of the *Trade Marks Regulations 1995* (Cth) permitted such an extension.

The Hearing Officer acknowledged the significant personal and professional challenges faced by the Holder's representative, Ms Wadeson, which contributed to the missed deadlines. These included managing a firm as a sole practitioner, significant personal relationship breakdowns, health issues, and extensive caring responsibilities for children with special needs, compounded by remote learning requirements and COVID-19 related lockdowns and isolation periods. Despite expressing sympathy and accepting that genuine disputes existed, the Hearing Officer determined that the application for an extension of time was itself filed out of time. Furthermore, the Hearing Officer concluded that, even if a discretion existed under regulation 17A.34H(4) to allow late filing of the notice of intention to defend, it was not appropriate to exercise that discretion in these circumstances, as the matter fell to be considered under other provisions of the Act and Regulations.

Consequently, the Hearing Officer decided to refuse the application for an extension of time and, subject to any appeal or other relevant action, proposed to refuse the extension of protection of the international registration.