The Five-Day Deadline and the Missing Declaration
You act for an applicant in opposition proceedings. The opponent filed evidence in support of the opposition, and the Registrar's direction set a deadline of 4.00pm on a Friday for the applicant to file evidence in answer. On the preceding Wednesday, your client's marketing manager, who is the only person who can sign the declaration about use of the mark, leaves for a three-week overseas trip and is uncontactable. You have a draft declaration but no signature. On Thursday afternoon you file a request for an extension of time of one month, supported by a short statement of reasons. The opponent objects, saying the delay is self-inflicted and that it will be prejudiced because it has already prepared its case. The Registrar asks for submissions.
1. Assess the strengths and weaknesses of the extension request and set out the submissions you would make.
Read the worked answer
The request is arguable but not strong. The starting point is that the deadline was set by direction, and compliance with directions is the norm; an extension is a discretionary indulgence, not a right. The weakness is that the unavailability of the declarant was foreseeable: a three-week absence of the only person able to sign should have been identified when the direction was made, and the draft could have been signed before departure. The opponent will characterise this as poor case management, and that characterisation has force.
The strengths are that the delay is short, the request was made before the deadline expired rather than after, a draft exists showing genuine progress, and the evidence is central rather than peripheral. Prejudice to the opponent from a one-month extension is limited: it can still prepare, and any prejudice can be addressed by an order for costs. The public interest in deciding oppositions on the merits, rather than on procedural accident, supports a short extension.
The submissions should therefore concede the point about foreseeability rather than dispute it, explain the concrete steps already taken, offer a tight timetable with a firm date, and offer to bear the costs of the extension. An unconditional request is more likely to succeed than one that argues the client did nothing wrong.
2. If the extension is refused and the applicant files no evidence in answer, explain the consequences for the proceeding and what advice you would give the client.
Read the worked answer
If no evidence in answer is filed, the applicant is not automatically defeated, but its position deteriorates sharply. The Registrar will decide the opposition on the material actually before it, which will include the opponent's evidence and the applicant's notice of opposition and statement of grounds. The applicant can still make submissions on the law and on the weight of the opponent's evidence, but it cannot put positive evidence of its own use, reputation or honest concurrent use before the Registrar. Any ground that depends on the applicant's own facts, such as prior use or a defence based on the applicant's reputation, will effectively be unavailable.
The client should be told plainly that the case is now an uphill one, that the absence of evidence will be visible to the Registrar, and that the likely outcome is refusal of the application or, at best, a narrow survival if the opponent's evidence is weak. The client should also be advised about the costs risk, since costs usually follow the event.
The practical advice is to consider whether a fresh application, supported by properly prepared evidence and filed with time to spare, is a better commercial route than continuing a weakened opposition. The file should record the advice, the client's instructions and the reason the declaration was not signed in time, because a complaint about the missed deadline is a realistic possibility and the record will matter.