The Question
Various statutory timelines under the Trade Marks Rules run from the date an order or decision is "communicated" to the party affected — for instance, the period within which to file an appeal or response. Registry practice of uploading decisions to its website raised the question whether such publication, without more, constitutes valid communication for the purpose of triggering these timelines.
The Clarification
Communication under Rule 38(4) requires that the order actually reach the party in a manner reasonably calculated to bring it to their attention — such as direct service, post, or email to the party or their agent of record. Mere publication on a public website, without any active step to notify the specific party affected, does not amount to communication in the sense the Rule requires. A party cannot be deemed to have received an order it was never actually notified of, merely because it was theoretically discoverable online.
Practical Implications
- Parties should not assume that a limitation period has begun to run simply because a decision has appeared on the Registry's website — actual notice to the party or its authorised agent is what starts the clock.
- Where a party discovers a decision was never properly communicated to it, this can be a valid ground to resist a limitation objection on a subsequent appeal or response.
- Practitioners should nonetheless monitor the Registry's website proactively as a matter of practice, since relying solely on formal communication carries the risk of missed deadlines if service is delayed or defective.