Applications for extensions of time of more than three months under subsections 224(2) or (3) must be published for opposition (subsections 224(5) and (6) and regs 21.20A to 21.20G). The Registrar is required to publish the application whether or not he or she intends to allow the extension and no preliminary decision will be made prior to publication.

6.1 Publication of applications for extension of time

An application for an extension of time of more than three months will not be published until the full fee has been paid and a signed and dated declaration has been provided. Once these basic requirements are met, the application will be set up for published for opposition.

If they relate to extensions of time for acceptance or registration of trade mark applications, these publications are published under the heading "Applications for Extension of Time". Applications for extensions of the periods to file applications for an award of costs or taxing of a bill of costs, are published under "Notices".

A letter is sent from the actioning area informing the applicant for the extension that publication of the application will occur and giving the date of publication in Australian Trade Mark Search . The applicant will also be advised that no further action will be taken until the opposition period has elapsed.

For extensions of time to apply for an award of costs, or to file a bill of costs, the other party to the proceedings is also advised of the publication - see Part 55 for details of these procedures.)

The process of publishing for opposition takes approximately two months - that is two weeks allowed at the beginning for publication to occur; then a month allowed for opposition to be filed; and a further two weeks allowed at the end for all correspondence to come in.

6.2 Process for filing opposition to the extension

A notice of opposition to an extension of time under subsection 224(6) must be made in an approved form within one month (not extendible, see paragraph 21.28(2)(b)) of the date of publication (reg 21.20B). The relevant fee must also be paid with the notice of opposition. The Registrar will give a copy of the notice to the extension applicant (subreg 21.20B(2)).

To be in an approved form, the notice of opposition should contain:

the trade mark number,
the name of the person applying for the extension,
the name, address, address for service of the person opposing the extension,
the ground(s) of opposition,
the type of opposition - i.e. opposition to an extension of time of more than 3 months,
If the appropriate fee has been paid, the notice of opposition will be entered into the system by TM&D Administration; this will prevent the system from processing the extension of time. The notice will then be forwarded electronically to the Hearings Support Unit for further action. In accordance with reg 21.20D, the procedures specified for oppositions to extensions of time of more than three months are to be decided by the Registrar according to the individual circumstances of each opposition. The Registrar will direct the parties accordingly.

6.3 Where there is no opposition to the extension of time

At the end of the opposition period, if no opposition has been filed, the application and declaration will be considered in detail and determined. If the application is deficient, for example it is sought for the wrong period or for the wrong act, an amendment may be required or a new application may need to be filed before the extension can be granted. Depending on the particular circumstances, the amended application may need to be re-published for opposition.

6.4 Where there is opposition to the extension of time

If opposition is filed to the application for extension of time, the procedures for filing evidence and providing for the parties to be heard are determined by the Registrar (see above).

The determination of whether the extension is allowable will be made in the course of the opposition proceedings. There will not be any preliminary determination as to whether the time sought is appropriate, or is justified by the supporting declaration. If substantive justification for the extension only appears during the proceedings (as per evidence in answer), this may be reflected in the award of costs.