Wyrallah Holdings Pty Ltd v Cargo Road Wines

This matter concerned an application by Cargo Road Wines for an extension of time to serve evidence in support of its Notice of Opposition to a trade mark application by Wyrallah Holdings Pty Ltd. The proceedings were heard by Ian Thompson, a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether to grant Cargo Road Wines an extension of time to file its evidence. This arose after Cargo Road Wines failed to file its evidence by the due date, and subsequently discovered that the initial material it had provided was not considered valid evidence by the Trade Marks Office. Wyrallah Holdings Pty Ltd opposed the grant of the extension.

The delegate reasoned that while an officer of the Trade Marks Office had provided incorrect advice to Cargo Road Wines regarding the form of its evidence, this did not constitute an "error or omission" by a trade marks officer in the context of regulation 21.24, which would have automatically entitled Cargo Road Wines to an extension. The delegate found that the initial filing of the Notice of Opposition by Charles Lane was invalid, and the subsequent advice from the Senior Examiner, while perhaps based on a misapprehension, did not meet the threshold for an official error that would necessitate an extension. Consequently, the delegate refused to extend the time for Cargo Road Wines to serve its evidence.

Regarding costs, the delegate declined to order costs against Cargo Road Wines. This decision was based on the fact that the hearing itself arose from an arguable official error, and it would be unfair to penalise Cargo Road Wines for acting on errant official advice. Wyrallah Holdings Pty Ltd was advised that it might equitably seek a refund of its hearing fee from the Trade Marks Office.