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27 October 2014
When judgment was handed down in Adcock Ingram Intellectual Property (Pty) Ltd & Adcock Ingram Healthcare (Pty) Ltd (the Opponents) v Actor Holdings (Pty) Ltd (the Trade Mark Applicant) 2013 on 23 May 2014, the Court a quo held that the Trade Mark Opponents were not entitled to apply for condonation of the late opposition to the registration of a trade mark filed by the Trade Mark Applicant. The key question raised by the Court was whether Section 45(3) of the Trade Marks Act 194 of 1993 read with Regulation 52(1) and (3) of such Act gives the Registrar a discretion to extend the opposition period before or after the expiration of the related time limits. The Court held that once the time limit by which Opponents can oppose the registration of a trade mark has expired it cannot be extended. The Opponents did not succeed with their initial application to the High Court for leave to appeal the court a quo’s decision and have now filed a petition to the Supreme Court of Appeal seeking leave to appeal such judgment on an urgent basis.
If the court a quo’s judgment is allowed to stand it will have far reaching consequences for parties involved in trade mark opposition matters where the Registrar of Trade Marks previously exercised her discretion and granted extension(s) of the opposition term after the expiration of the imposed statutory time limits. Will judgments handed down in those matters be rendered invalid on the basis that the extended opposition terms were erroneously granted?