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Intellectual Property February 2017

8 March 2017
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Welcome to this issue of IP Monthly where we highlight some developments in the intellectual property space in the month of February. Importantly, we also highlight a ruling by the Assistant Registrar of Trademarks on extensions of time and the exercise of the Registrar’s discretion in such instances. We hope that you will find the features in this newsletter informative.

Notable ruling by the Assistant Registrar of trademarks on extension of time in Sichuan Yaunxing Rubber Co Ltd v Bridgestone Corporation

Sichuan Yaunxing Rubber Co. Ltd (the Applicant) filed an application for extension of time within which to file its Statutory Declaration, under Rules 102(6) and 103 of the Trade Marks Rules. In the opposition proceedings commenced by Bridgestone Corporation (the Opponent), the Applicant had until 14 March 2012 to file its Statutory Declaration but failed to do so. It applied for the extension on time on 29 March 2012, after the due date for filing its Statutory Declaration had lapsed.

The Opponent opposed this application, and on 12 April 2012, it requested the Registrar to deem the Applicant’s application as abandoned under Rule 52A of on account of failing to file its Statutory Declaration on time. The Applicant then made a second application to the Registrar on 11 May 2012, for extension of time on the grounds that its agent overlooked the deadline and failed to apply for extension of 30 days in order to file the Statutory Declaration; and this omission should not have been visited upon the Applicant in the interest of justice and fairness. The Assistant Registrar allowed the application in the interest of justice, stating that the delay was not inordinate and could be excused under the circumstances.

The Assistant Registrar relied on the decision in Murai v Wainaina (1982) KLR 38 where the court stated that “…The door to justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not condone or forgive it, but it ought to do whatever is necessary to rectify it if the interests of justice so dictate.” The Assistant Registrar also considered Article 159(2)(d) of the Constitution which provides that justice shall be administered without due regard to procedural technicalities, and took the view that the Opponent would not suffer prejudice if the Applicant was allowed to file its Statutory Declaration and the matter was heard and determined on merit.