NSW 2 MONTH OPPOSITION PERIOD CALCULATION

Discussion in 'Intellectual Property Law Forum' started by Vadim, 10 July 2018.

  1. Vadim

    Vadim Well-Known Member

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    G'day,
    Can anyone let me know what is the CORRECT date of the LAST day of 2 month opposition period STARTED ON 26/04/2018 - this is the date of the day when Trade Mark acceptance was advertised
    Thank you in advance
    Vadim

    According to our calculation:
    FIRST day is 26/04/2018
    LAST day is 25/06/2018
    Total period is: 2 months 0 day

    According to IP Australia calculation
    FIRST day is 26/04/2018
    LAST day is 26/06/2018
    Total period is: 2 months 1 day
     
  2. DMLegal

    DMLegal Well-Known Member

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    IP Australia is correct - the Trademark Regulations 1995 provides that the filing date is 2 months from the date the trademark is advertised in the Offical Journal. The Acts Interpretation Act 1901 provides that where a date is to be calculated from a date it 'does not include that date'. So you don't count the day the trademark was advertised. You would have until 23:59:59 on the 26th June to lodge the notice.
     
  3. Rob Legat - SBPL

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    Under the Acts Interpretation Act, section 36, a time period expressed to be from a particular day does not include that day. Section 5.6 of Trademarks Regulations provides that the time period to oppose a trademark is 2 months from the date of advertising. If the start date is 26 April, the end date is 26 June.
     
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  4. Vadim

    Vadim Well-Known Member

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    Thank you very much for your reply.

    You are right but we have following statements and regulations:

    1. The Trade Marks Act 1995, Part 2, 6A states the following: “6A Periods expressed in months For the purposes of this Act, a period expressed in months and dating [FROM] [AN EVENT] [ends on the day, in the relevant subsequent month, which has the same number as the day of the event]

    2. Trade Marks Regulations 1995 provides that the filing period is 2 months [FROM which means AFTER] the date the trademark is advertised in the Offical Journal

    3. Acts Interpretation Act 1901, 36 Calculating time, means this: “If the [period of time] is expressed to begin FROM [a specified day] then the period of time does not include [that day]

    According to the Trade Marks legislation above:

    If Trade Mark acceptance [AN EVENT] is advertised on 26/04/2018 then FIRST day of 2 month opposition period should START ON the NEXT day AFTER [AN EVENT] because "the period of time does not include [that [AN EVENT] day]":

    [AN EVENT]
    Day the acceptance is advertised is 26/04/2018 because "the period of time [2 month opposition] does not include [that [AN EVENT] day]"
    FIRST day of 2 month opposition period should be 27/04/2018 because the filing date is 2 months [FROM = AFTER] the date the trademark is advertised
    LAST day of 2 month opposition period should be 26/06/2018

    BUT

    According to IP Australia:

    If Trade Mark acceptance [AN EVENT] is advertised on 26/04/2018 then FIRST day of 2 month opposition period STARTS ON the SAME [AN EVENT] while Acts Interpretation Act 1901, 36 Calculating time, states: “If the [period of time] is expressed to begin FROM [a specified day] then the period of time does not include [that day]

    FIRST day of 2 month opposition period is 26/04/2018 = [AN EVENT] Day the acceptance is advertised is 26/04/2018 which must NOT be included
    LAST day of 2 month opposition period should be 26/06/2018

    IP Australia has adopted practice where FIRST day of 2 month opposition period is the [SAME] [AN EVENT] day when the acceptance is advertised which means that FIRST day of 2 month opposition period which should be 27/04/2018 is shifted 1 day back to the [AN EVENT] Day the acceptance is advertised is 26/04/2018 which adds 1 extra day to 2 month opposition period and makes that period equal to 2 months + 1 day
     
  5. Vadim

    Vadim Well-Known Member

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    Thank you for your reply.

    IF

    "a time period [2 month opposition period] expressed to be from a particular day [the day the acceptance is advertised] does not include that day"

    THEN

    "that day" - [the day the acceptance is advertised] is not included in 2 month opposition period

    Is it correct?

    Thank you

    Vadim
     
  6. Rob Legat - SBPL

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    You're looking at this the wrong way. The period isn't stated to be two months exactly; the period is "2 months from the day". It's like saying "two clear months". It's an arbitrary amount of time. How many days it actually is will depend on the calendar months involved.

    In practical terms it's almost entirely unlikely someone is going to have the presence of mind and preparation to be able to file a notice of intention to oppose on the day the advertisement is published.
     
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  7. DMLegal

    DMLegal Well-Known Member

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    It appears to me you end up with the 26th no matter which approach you use. Using the TA you use the day with the same 'number', that is the 26th day. The AIA just means you don't include the first day, but that doesn't mean an extra day appears from nowhere. On reflection I probably shouldnt have referred to the Acts Interpretation Act, that is typically only useful when time is expressed as days, such as merits review which needs to be applied for within 28 days of a decision; it has more relevant in circumstances such as that. Listen to Rob, he is far clearer at explaining this mumbo jumbo. No matter what, it's the 26th, if its not and i'm wrong, I retire.
     
  8. Vadim

    Vadim Well-Known Member

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    G'day,

    Could you please let me know if I have interpreted (dated) all days and periods of the example from the The Trade Marks Act 1995, Part 2, 6A correctly

    The Trade Marks Act 1995, Part 2, 6A Periods expressed in months
    For the purposes of this Act, a period expressed in months and dating from an event ends:
    (a) on the day, in the relevant subsequent month, which has the same number as the day of the event; or
    (b) if the relevant subsequent month has no day with the same number—on the last day of the month.
    Note: For example, [a period of 3 months] from [an event on 30 September] [ends on 30 December] under this rule.”

    EVENT [an event on 30 September] - 30/09 is not included into [a period of 3 months]*
    FIRST day
    of [a period of 3 months] - 01/10
    LAST day of [a period of 3 months] - 30/12

    * EVENT [an event on 30 September] - 30/09 is not included into [a period of 3 months] according to Acts Interpretation Act 1901, 36 Calculating time, which states: “If the [period of time] is expressed to begin from [a specified day] then the period of time does not include [that day] ”

    [period of time] is [a period of 3 months] from an example
    [a specified day] is [an event on 30 September] from an example

    Thank you
    Vadim
     
  9. Rob Legat - SBPL

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    Your reasoning is partially correct:
    - The last day is correct; but
    - The 'first' day's correctness depends on how you are looking at it. If it's solely in terms of calculation - your reasoning is correct. If it is in terms of when a response to an event can take place, the event date is to be included. Read it as saying, "... that the filing date is until the end of the day 2 months from the date the trademark is advertised...".
     
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  10. Vadim

    Vadim Well-Known Member

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    Thank you very much, Rob, for your opinion.

    Yes, Rob, I wanted to know if my interpretation is correct by reading exactly (not more not less) that particular example in The Trade Marks Act 1995, Part 2, 6A Periods expressed in months "[a period of 3 months] from [an event on 30 September] [ends on 30 December]"

    Similar example but much simpler because an event is on the last day of a calendar year and a first day on the first day of a calendar year:

    "
    [a period of 2 months] from [an event on 31 December] [ends on 28 February]"

    EVENT [an event on 31 December] - 31/12 is not included into [a period of 2 months]*
    FIRST day of [a period of 2 months] - 01/01
    1st month: 01/01-31/01 - January
    2nd month: 01/02-
    28/02 - February
    LAST day of [a period of 2 months] - 28/02

    *
    EVENT [an event on 31 December] - 31/12 is not included into [a period of 2 months] according to Acts Interpretation Act 1901, 36 Calculating time, which states: “If the [period of time] is expressed to begin from [a specified day] then the period of time does not include [that day] ”

    Would you be able to let me know if my interpretation of this simpler example correct?

    Thank you

    Vadim


     
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