NSW 6A Periods expressed in months

[Vadim]

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.

Thank you very much, Rob.

This is what I am saying. When IP Australia calculates monthly periods it uses Trade Marks Act 1995 6A Periods expressed in months but it does NOT apply Acts Interpretation Act 1901 Section 36 Calculation Time.


Trade Marks Act 1995 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.


For example, a period of 3 months FROM an event on 30 September ends on 30 December under this rule.


BUT


Acts Interpretation Act 1901 Section 36 Calculation Time states that:

“If period of time is expressed to begin FROM a specified day then the period of time does NOT include that day”


“Example 5: If a variation of an agreement is expressed to operate FROM 30 June, the variation starts to operate on 1 July.”

which means that 30 September in the example provided in Trade Marks Act 1995 6A Periods expressed in months must NOT be included in that 3 months period example which in it’s turn means that FIRST day of 3 months period in that example is 1 October and NOT 30 September.

But IP Australia DOES include “day of the event “ - day when Trade Mark Acceptance is published in Trade Marks Journal and this adds 1 extra day.

So, 1 extra day in IP Australia's monthly periods calculations is result of NOT applying Acts Interpretation Act 1901 Section 36 Calculation Time which clearly states that “If period of time is expressed to begin FROM a specified day then the period of time does NOT include that day”

Thank you,
Vadim

 

[Vadim]

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.

Also, Rob,

Trade Marks Act 1995 6A Periods expressed in months states only the day when period ENDS and does clearly states the day when period STARTS.
In order to determine the day when period STARTS IP Australia must follow, use and apply Acts Interpretation Act 1901 Section 36 Calculation Time and NOT to include day of the event into calculated periods but IP Australia does NOT follow, use and apply Acts Interpretation Act 1901 Section 36 Calculation Time, IP Australia DOES include day of the event into calculated periods and as result all monthly periods calculated by IP Australia are 1 day longer than normal monthly periods.

Thank you
Vadim

 

[Rob Legat - SBPL]

I don't see the point of your argument. As I've already stated, day 1 of the period is largely irrelevant in practical terms. If there is some relevance in your circumstances, can you please describe the situation and you think it is important.

The first thing to understand in terms of understanding the concept is the concept of 'clear' time. If you are given three months to do something, you get three clear months - which means three complete months. In order to do that you have to have that little bit extra in the form of the balance of the day on which the particular event occurs. If you did it otherwise you'd be getting three months minus half a day (using, for example, initial notification of the event occurring at midday).

The second thing to understand is the concept that calculation of time in terms of "from" doesn't mean there's a block at both ends. If a time period runs from a particular event, the ability to respond to it generally runs from when the event happens. It would be an obscene outcome to refuse someone that first day to respond - assuming they're even capable of doing so.

Contrast this with a 'between' time period which often occurs in leases. A lease may say the tenant has the right to exercise the option but only if they do so between 3 months and 6 months prior to the end of the lease. That's a definitive set of dates with a beginning and an end in which something can be done.

The last thing to understand is that the Trade Marks Act and the Acts Interpretation Act aren't in opposition here. The non-inclusion of the relevant day is the same outcome in both Acts and the day does not become invalid - it just is not included in the calculation of the time period by which to determine the last day.

 

[Vadim]

Thank you, Rob, for your answer.

If decision of the Parliament makes 2 months opposition period equal to the period of 2 months + 1 day why not to state this clearly and honestly that Trade Marks opposition period in Australia is "2 months + 1 day" and not to deceive and mislead trade mark applicants by declaring 2 months opposition period while accepting oppositions within 2 months and 1 day period?

We have just submitted following enquiry to IP Australia. We will see what IP Australia will answer.


To IP Australia

Acceptance of our Trade Marks 1803056 and 1803057 was published in Trade Marks Journal on 26/04/2018 which means that 26/04/2018 is the FIRST day of 2 months opposition period.

IP Australia accepted opposition against our Trade Marks 1803056 and 1803057 on 26/06/2018 stating that 26/06/2018 is the LAST day of 2 months opposition period.

THEREFORE, according to IP Australia:

FIRST month of 2 months opposition period

• FIRST day of the FIRST month of 2 months opposition period is 26/04/2018
• LAST day of the FIRST month of 2 months opposition period is ??? [awaiting answer from IP Australia]

SECOND month of 2 months opposition period

• FIRST day of the SECOND month of 2 months opposition period is ??? [awaiting answer from IP Australia]
• LAST day of the SECOND month of 2 months opposition period is 26/06/2018

If 2 months opposition period in case of our trade marks starts on 26/04/2018 and ends on 26/06/2018 according to IP Australia way of calculation of 2 months period then we would love to get CLEAR answers from IP Australia to our SIMPLE questions:

• What is the LAST day of the FIRST month of 2 months opposition period against our Trade Marks 1803056 and 1803057 from the point of view of IP Australia?
• What is the FIRST day of the SECOND month of 2 months opposition period against our Trade Marks 1803056 and 1803057 from the point of view of IP Australia?

Your answers will help us to put all puzzles together and to understand how 2 consecutive calendar months fit into your, IP Australia’s, 2 months opposition period which in case of our trademarks STARTS on 26/04/2018 and ENDS on 26/06/2018.

It would be interesting to see how IP Australia will split it's 2 months opposition period into 2 separate months and which day will be the last day of the first month and which day will be the first day of the second month.

 

[Rob Legat - SBPL]

I doubt you're going to get any response from IP Australia which goes much beyond, "See section 6A".

I've had a look at the trade marks in question. So your argument boils down to the 'opposition was filed on 26 June 2018 and that should be outside the two month period, and therefore too late', right?

Well, for a start (and I don't know the answer to this), how are you sure that the opposition wasn't filed beforehand and IP Australia just waited until the end of the period to list the opposition? This could happen as they may be waiting to see if there is other opposition, or reviewing it to see if it meets the criteria for valid opposition. If (and I do mean if) this is the case and the opposition was actually filed before 26 June 2018, then the whole '2 month' argument you're raising is moot.

Even if this is not the case, the Act and the Regulation are very clear about the relevant date being calculated 'from' the date of the event and what 'from' that date means. It is spelled out in no uncertain terms in section 6 of the Act. It even includes an example:

"Note: For example, a period of 3 months from an event on 30 September ends on 30 December under this rule."

This is them 'clearly and honestly' saying it is that period and that is how it is calculated. It is written into the Act and, as such, everyone is deemed to have received proper notice of that provision.

I'm sorry to say but your questions are irrelevant. As I've already covered above, the day the event happens is largely inconsequential for the timing of anything. The simple answer to your questions will be: First month of period is the start of 25 April 2018 to the end of 24 May 2018, and second month is the start of 25 May 2018 to the end of 24 June 2018.

I think your argument is going to be unsuccessful. It is clearly established by the Act what the two month period entails, and when it ends. The opposition is recorded within that determined time period.