Earlier this month the Court of First Instance of the European Communities gave judgment in Case T-136/08 Aurelia Finance SA v Office for Harmonisation in the Internal Market.

Aurelia registered the word AURELIA as a Community trade mark. Following the removal of this mark from the CTM register for non-renewal, Aurelia applied for restitutio in integrum, saying that it had employed a specialist firm which provided trade mark renewal services. This firm had established a computerised system linked to a database, into which various data concerning the proprietors, trade marks and patents subject to renewal were manually entered. However, in Aurelia's case, an employee of that firm failed to enter the data which was needed if the system was to operate correctly. This meant that no notification of the renewal date was ever sent to Aurelia.

The application for restitutio in integrum was dismissed on the ground that the specialist firm had not shown the due care required. Aurelia appealed unsuccessfully to the First Board of Appeal, which considered that the specialist firm ought to have set up a trade mark renewals system offering assurance that it functioned properly and containing a monitoring mechanism capable of detecting possible errors and anomalies. Aurelia then appealed uunsuccessfully to the Court of First Instance.

According to the court, it was clear that restitutio in integrum was subject to two requirements: (i) the party must have exercised all due care required by the circumstances, and (ii) the non-observance by the party had the direct consequence of causing the loss of any right or means of redress. The standard of care required in trade mark renewals did not vary according to whether the tasks to be performed were administrative or legal in nature. Restitutio in integrum might be granted only in the case of exceptional events, which could not be predicted from experience.

In this case, the due care required by the circumstances demanded that (i) the overall design of the system should ensure that time limits were adhered to; (ii) the system should be capable of detecting and correcting any foreseeable error in both the performance of the tasks of the specialist firm’s staff and the functioning of the computerised system; and (iii) the staff of the specialist firm responsible for inputting the required data and using the system should be adequately trained, required to check their operations and supervised. Since human error in inputting could not be regarded as exceptional or unforeseeable, the firm's system ought to have provided for a mechanism for detecting and correcting such errors.