Lyons, Neville William & Anor v Registrar of Trade Marks & Anor [1983] FCA 252

Lyons, Neville William & Anor v Registrar of Trade Marks & Anor [1983] FCA 252

Section 131 of the Trade Marks Act 1955 may operate to extend the time for lodging a notice of opposition to trade mark registration where the failure to comply was caused by an error or omission in the performance of statutory duties by officers of the Trade Marks Office. The delay in the forwarding of documentation from Canberra to the Melbourne Sub-Office was an 'error or action' within the meaning of s.131(1)(b), justifying the extension exercised by the delegate. The applicants failed to demonstrate any jurisdictional error or improper exercise of discretion by the delegate in granting the extensions sought under s.130 or s.131. The case under the Administrative Decisions (Judicial...

Parties
Applicants: Neville William Lyons and Carmel Mary Dwyer (carrying on business as Mitty's Authorised Newsagency); First Respondent: The Registrar of Trade Marks; Second Respondent: Stamford Hill Pty. Limited
Jurisdiction
Australia
Judgment Date
28 September 1983
Procedural Posture
Judicial Review Application / Final Judgment at First Instance
Outcome
Application dismissed
Legal Topics
Judicial Review of Decisions—trade Marks, Extension of Time—trade Marks Opposition, Interpretation of Remedial Statutory Provisions
Administrative Law Intellectual Property Judicial Review of Decisions—trade Marks Extension of Time—trade Marks Opposition Interpretation of Remedial Statutory Provisions

Case Brief

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Parties

Neville William Lyons and Carmel Mary Dwyer (carrying on business as Mitty's Authorised Newsagency)

Applicants

The Registrar of Trade Marks

First Respondent

Stamford Hill Pty. Limited

Second Respondent

Procedural Posture

Judicial Review Application / Final Judgment at First Instance

Legal Issues

  1. 1 Whether s.131 of the Trade Marks Act 1955 allows extension of time for lodging notice of objection to registration of a trade mark where non-compliance is due to error or action of a Trade Marks Office officer.
  2. 2 Whether the delegate properly exercised discretion in granting extension of time for lodging evidence in opposition proceedings.
  3. 3 Whether s.49 of the Trade Marks Act 1955 constitutes a code precluding application of s.130 or s.131.

Ratio Decidendi

Section 131 of the Trade Marks Act 1955 may operate to extend the time for lodging a notice of opposition to trade mark registration where the failure to comply was caused by an error or omission in the performance of statutory duties by officers of the Trade Marks Office. The delay in the forwarding of documentation from Canberra to the Melbourne Sub-Office was an 'error or action' within the meaning of s.131(1)(b), justifying the extension exercised by the delegate. The applicants failed to demonstrate any jurisdictional error or improper exercise of discretion by the delegate in granting the extensions sought under s.130 or s.131. The case under the Administrative Decisions (Judicial...

Court Disposition

Application dismissed

Orders

  • The application be dismissed.
  • Costs be reserved.