An application for registration of the trademark “TRISKIES” was filed with the Trinidad and Tobago Intellectual Property Office (“TTIPO”) by Trinidad Import and Export Company Limited (“TIECL”). Societe des Produits Nestle S.A. (“Nestle”), the registered owner of the trademark “Friskies”, filed a Notice in opposition to the said application, following which a counter statement was filed by TIECL, a copy of which was received by Nestle on November 2, 1995. The Deputy Registrar General of TTIPO issued a letter to Nestle, requiring the filing of its evidence in opposition by November 30, 1995.
On November 29, 1995, Attorneys-at-Law for Nestle wrote to the Deputy Registrar General of TTIPO requesting an extension to the end of February 1996, for the filing of said evidence. The Deputy Registrar General, in her reply, invited Nestle to seek the consent of TIECL regarding the requested extension and advised that if TIECL had not agreed to same by January 31, 1996, a hearing would be fixed for Nestle’s application. No consent was granted by TIECL and Nestle notified the Deputy Registrar General accordingly, in response to which the Deputy Registrar General informed Nestle’s Attorneys-at-Law that their application for an extension of time would be heard on February 16, 1996, at 10:00 a.m. This hearing was not attended by the Attorney-at-Law for Nestle but was attended by a director of TIECL. After waiting half an hour, the Deputy Registrar General commenced the hearing in the absence of the Attorney-at-Law for Nestle and heard the reasons expressed on behalf of TIECL for opposing the grant of the extension. The Deputy Registrar General then decided to refuse Nestle’s application for an extension.
Later that day, Nestle’s Attorney-at-Law learnt of what transpired at the hearing and he subsequently communicated with the Deputy Registrar General regarding the proceedings. By letter dated March 5, 1996, Nestle’s Attorney-at-Law resubmitted his request for an extension of time. The Deputy Registrar General sought the guidance of the Solicitor General on the matter, who advised that there was no power in legislation, given to the Deputy Registrar General, to re-open the application for the extension of time. Accordingly, the Deputy Registrar General declined to re-open application.
The Respondent initiated judicial review proceedings in the High Court.
The court considered that the issue for determination was whether the Deputy Registrar General wrongly declined jurisdiction to reopen the application by Nestle. Moreover, the court found that as a matter of public policy, there was no reason why a primary tribunal should not be allowed to reconsider an interlocutory decision when it is just to do so, such as in cases when one side was not represented and had no opportunity to put forth its case. The court added that such discretion should be sparingly exercised.
The High Court therefore held that the Deputy Registrar General mistakenly declined jurisdiction to entertain an application to rehear Nestle’s application for an extension of time.
Cases referred to:
PREDATOR Trade Mark (1982) RPC 387;
R v Kensington & Chelsea Rent Tribunal, Exparte Mac Farlane [1974] 1 WLR 1486;
De Verteuil v Knaggs;
R v Appeal Committee of County of London Quarter Sessions Ex Parte Rossi [1956] 1 All E.R. 670;
The Queen v May and Others (1880) 5 OBD 382;
Martin v Abbott Australasia Property Ltd [1981] 2 N.S.WL.R. 430;
St. Andrew’s Holborn (Inhabitants) v ST. Clement Danes’ (Inhabitants) (1) (1704) (2 Salk 606;
Street’s Case (3) (1722) (7 Vin Ab. 24 pl 10);
R v Peters (4) (1758) (1 Burr. 568);
Pridgeon’s Case (5) (1633) (Cro. Car. 341 at p. 350);
R v Glynne (6) 2871 (L.R. 7 Q.B. 16);
Bayly v Boorne (7) (1720) 1 Str. 393;
Jewell Hill (8) (1722) 1 Str. 499;
T.O. Supplies (London) Ltd. v Jerry Creighton Ltd (9) [1951] 2 All E.R. 992;
Reed v Nut (1890) 24 QED 669;