NSW 6A Periods expressed in months

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Vadim

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10 July 2018
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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.

QUESTIONS:

1. Is date of the event INCLUDED in the calculation of the period of 3 month period calculation example or EXCLUDED?

2. What is the first day of this 3 month period calculation example? 30 September OR 1 October?

Thank you in advance
Vadim
 

Tim W

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And which act is this from?
 

Rob Legat - SBPL

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Trade Marks Act 1995 right?

The date the event happens is included. So, if the event happens on 30 September then that it is the first day. The three month period concludes at the end of 30 December.
If the event happens on 28 February, the three month period ends on 28 May.
But, if the event happens on 30 November, the three month period ends on 28 February (29 February in a leap year).

So, to specifically answer your questions:
1. Included
2. 30 September

Really, the first day of something happening tends not to be a big deal in practice. The three month period runs from when something occurs, and you generally don't get lead in notice to when that thing is occurring.
 
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Vadim

Well-Known Member
10 July 2018
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Trade Marks Act 1995 right?

The date the event happens is included. So, if the event happens on 30 September then that it is the first day. The three month period concludes at the end of 30 December.
If the event happens on 28 February, the three month period ends on 28 May.
But, if the event happens on 30 November, the three month period ends on 28 February (29 February in a leap year).

So, to specifically answer your questions:
1. Included
2. 30 September

Really, the first day of something happening tends not to be a big deal in practice. The three month period runs from when something occurs, and you generally don't get lead in notice to when that thing is occurring.

Thank you very much, Rob,

Sometimes 1 day makes a big difference.

IF date of the event is included into this 3 month calculation period sample where:
FIRST DAY: 30 September 2019
LAST DAY: 30 December 2019

THEN:
1. we will get 3 months and 1 day instead of exactly 3 months
2. we will get 4 days with the same day number (30/09, 30/10, 30/11, 30/12) within 3 month period which never happens in real life
3. we will end up with 369 days in a year which never happens in real life.

1st 3 months period
FIRST DAY: 30 September 2019
LAST DAY: 30 December 2019 92 days = 3 months + 1 day

+

2nd 3 months period
FIRST DAY: 31 December 2019
LAST DAY: 31 March 2020 92 days = 3 months + 1 day

+

3rd 3 months period
FIRST DAY: 01 April 2020
LAST DAY: 01 July 2020 92 days = 3 months + 1 day

+

4rd 3 months period
FIRST DAY: 02 July 2020
LAST DAY: 02 October 2020 93 days = 3 months + 1 day
 

Rob Legat - SBPL

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No, because they overlap. Think of it as a clear 3 month period with the day of notification being open to dealing with the issue but not calculated in the period because it's not a full day. To illustrate that, imagine you receive notice at 4.59.59pm. You would lose that day for response and actually have less than 3 months to respond.
 

Vadim

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10 July 2018
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No, because they overlap. Think of it as a clear 3 month period with the day of notification being open to dealing with the issue but not calculated in the period because it's not a full day. To illustrate that, imagine you receive notice at 4.59.59pm. You would lose that day for response and actually have less than 3 months to respond.
Thank you very much, Rob, for your answers.

Guys in UK from Government Organisation UK Intellectual Property Office (UKIPO) were thinking same WRONG way until 30/09/2010 when they finally admitted that their funny way of calculation was WRONG & INCORRECT.

===
In an Official Notice issued on 30 September 2010, which appears to have taken everybody by surprise, the UK Intellectual Property Office (UKIPO) has announced a change in practice in relation to the period allowed for filing a Notice of Opposition to the registration of a national trade mark. Specifically, the expiry of the two-month opposition period has been reduced by one day.

For example, if an application is published for acceptance on 6 October 2010, it would previously have been the case that a Notice of Opposition could be filed up until 6 December 2010. Under the new practice, the final date for filing a Notice of Opposition is 5 December 2010.

REASON FOR THE CHANGE IN PRACTICE

The UKIPO thas concluded that up until now it has been erroneously allowing opponents one day more than the Trade Marks Rules 2008 permit within which to file a Notice of Opposition. The relevant rule states:

...the time prescribed for the purposes of [filing a Notice of Opposition] shall be the period of two months beginning with the date on which the application was published. (Emphasis added)

The Official Notice cites authority that the phrase "beginning with" requires that the start date be included in the period (as opposed to "from", when the first day is excluded from the calculation), while "month" means a calendar month, whereby "the period expires with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts.
===

So, who's 2 month period calculation is WRONG and who's is CORRECT?
1. UK Intellectual Property Office (UKIPO) way? If FIRST day is 26/04 then LAST day is 25/06 (2 month exactly)
2. IP Australia way? If FIRST day is 26/04 then LAST day is 26/06 (2 months and 1 day)
 

Rob Legat - SBPL

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Apples and oranges. The UK's interpretation doesn't have any validity in Australia. Also, our Act's wording is specific, and different from the expression given in the UK commentary in your post.
 

Vadim

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10 July 2018
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Apples and oranges. The UK's interpretation doesn't have any validity in Australia. Also, our Act's wording is specific, and different from the expression given in the UK commentary in your post.
Thank you, Rob, for your time and reply. I agree that wording can be different but duration of 2 month period must be equal to 2 months not to 2 months and 1 day.
It is strange and ridiculous that 2 months period within IP Australia Office is 1 day longer than 2 months period anywhere else on the Earth.
This IP Australia's stupidity really makes normal people think that IP Australia pretends to be above the law and out of reality.
It is sad that IP Australia breaches the law but nobody in Australia can stop them.

This is what calendar month means anywhere in the world: "Calendar Month means a period starting at the beginning of any day of one of the 12 named months and ending immediately before the beginning of the corresponding day of the next month;"

This is what calendar month means within IP Australia Office: "Calendar Month means a period starting at the beginning of any day of one of the 12 named months and ending on the corresponding day of the next month;" which is ridiculous, against any reality, against any common sense and which makes IP Australia's style 1 month equal to 1 month and a 1 day.
 

Rob Legat - SBPL

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It's not IP Australia's call - it's what the Trade Marks Act says and that's a decision of Parliament.

And it's also generally in accordance with statutory interpretation rules laid out in the Acts Interpretation Act when it comes to time frames - see here: ACTS INTERPRETATION ACT 1901 - SECT 36 Calculating time

Whether or not it's ridiculous is irrelevant. There are a lot more 'ridiculous' laws in Australia.