15.3. Circumstances in which the Registrar must extend time

If a relevant act has to be done within a certain time and it is not or cannot be done in that time because of an error or omission on the part of a trade marks employee, the Registrar must extend the time for the doing of the act.

3.1

If error or omission on the part of a trade marks employee is established, the Registrar must extend the time. The Registrar has no discretion in this matter.

3.2

The error or omission may be discovered and acted upon by the Registrar.

3.3

The error or omission may be brought to the Registrar's attention by the applicant or the applicant's agent, or by a third party.

3.4

In cases where the matter is not clear cut, the Registrar may require the person to make application in writing for the extension of time, supported by a declaration setting out the circumstances of the case. Reg 21.33 empowers the Registrar to ask for any documents not otherwise required by the Act or Regulations that are necessary to the proceedings.

3.5

Examples of error or omission by a trade marks employee could include:

• failure to send notification required by the legislation;

• failure to act on an application, notice or request;

• failure to act as soon as practicable (section 204) (late response to an applicant's reply to an examiner's report)

3.6

Some guidance on what has been considered by the courts to constitute error or omission in the context of paragraph 131(1)(b) of the 1955 Act can be found in Lyons (trading as Mitty's Authorized Newsagency) v Registrar of Trade Marks (1983) 1 IPR 416 at 429 (FC).

3.7

Even if an extension of time granted under subsection 224(1) is for a period of more than three months, it is not subject to advertisement for opposition since subsection 224(5) does not relate to subsection 224(1).

3.8

Subsection 224(3A) provides that the Registrar must extend the time for doing a relevant act if he or she has revoked registration of a trade mark.