The Counterstatement and the Evidence Rounds

In one line

Three rounds of affidavits, each with a deadline, and a party who misses his is deemed to have given up.

In the wording a student can write in an exam: after the counterstatement on Form TM-O within two months under rule 44(1), evidence is filed in three rounds: the opponent's evidence in support of opposition within two months of service of the counterstatement, under rule 45; the applicant's evidence in support of application within two months of receiving it, under rule 46; and the opponent's evidence in reply within one month, under rule 47; and rule 48 provides that no further evidence shall be left on either side except with the leave of the Registrar.

The counterstatement: rule 44

Rule 44(1). The counterstatement required by section 21(2) shall be sent on Form TM-O within two months from the receipt by the applicant of the copy of the notice of opposition from the Registrar, and shall set out what facts, if any, alleged in the notice of opposition are admitted by the applicant. A copy shall ordinarily be served by the Registrar on the opponent within two months of its receipt.

Rule 44(2). The counterstatement shall be verified in the manner provided by rule 43(2) to (4), that is at the foot, paragraph by paragraph, distinguishing knowledge from information and belief, signed, dated and placed.

Note what the rule asks for. Not a full defence: a statement of what is admitted. In practice a counterstatement denies the material allegations and sets out the applicant's own case, and both are proper, but the admissions are what the rule requires and what the Registrar reads first.

And note the consequence, which is in the Act. Section 21(2): if the applicant does not send a counterstatement, he shall be deemed to have abandoned his application.

Round one: rule 45, the opponent's evidence

Within two months from service of a copy of the counterstatement, the opponent shall either:

• leave with the Registrar such evidence by way of affidavit as he desires to adduce in support of his opposition; or
• intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence but intends to rely on the facts stated in the notice of opposition.

He must deliver to the applicant copies of any evidence including exhibits, and intimate the Registrar in writing of the delivery.

Rule 45(2): if the opponent takes no action under sub-rule (1) within that time, he shall be deemed to have abandoned his opposition.

So doing nothing is fatal, but saying "I rely on my notice" is not. A one line intimation preserves the opposition.