3. Is a hearing always necessary?

Date Published

Section 203 of the Act provides that the Registrar may not exercise a power under the Act in a way that adversely affects an applicant for the exercise of that power without first giving the applicant a reasonable opportunity of being heard. That entitlement is repeated in other provisions, such as subsection 33(4) (or 176(1A) in the case of a certification trade mark). However, if the applicant chooses not to take this opportunity,​​​​​​​ subregs 21.15(5) and (6) provide that the Registrar may decide the matter without a hearing, by reference to the relevant information on file in the Trade Marks Office.

In opposition matters, where the Registrar has allowed a reasonable time for all parties to indicate whether they wish to be heard, or where all parties indicate that they do not wish to be heard - per paragraph 21.15(5)(a) - the Registrar is not required to hold a hearing. No time and place for a hearing need be appointed in such a case. Provided all relevant fees are paid, a delegate of the Registrar will proceed to decide the matter as soon as it is administratively convenient to do so.

Non-appearance at a hearing, where one has been set down, will trigger paragraph 21.15(5)(d), which allows the matter to be decided without a hearing on the information available to the Registrar.