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Court of Justice clarifies starting-date rules for restititio in integrum
Case C-479/09 P Evets Corp v OHIM (Court of Justice of the European Union, 30 September 2010) was the final appeal in a dispute arising from a failure to renew two Community trade mark registrations: DANELECTRO and QWIK TUNE. The question before the Court was whether the starting point for the period of two months from the removal of the cause of non-compliance with the time-limit for submitting an application for restitutio in integrum within the meaning of Article 78 of Regulation 40/94 is the date on which (i) the Community trade mark owner's representative was informed that the rights in question had been lost or to that on which (ii) the owner itself became aware of that loss. Said the Court:
Posted by: Blog Administrator @ 10.00"38 ... the authorisation of the representative of a trade mark proprietor before OHIM covers all procedural steps relating to trade marks, including the procedural steps relating to the renewal of registration of a Community trade mark.
39 ... any notification or other communication addressed by OHIM to a duly authorised representative is to have the same effect as if it had been addressed to the represented person. The same is true of any communication addressed to OHIM by the duly authorised representative, which is to have the same effect as if it originated from the represented person.
40 ... Rule 77 does not lay down any distinction between a notification or communication which has the effect of causing a period to start to run and one which does not have such an effect, with the result that that rule applies irrespective of the effect produced by that notification or communication.
41 ... what matters with regard to OHIM are the communications and notifications exchanged between it and the representative of the proprietor of the trade mark in question, and not those exchanged between the representative of the proprietor of that mark and that proprietor.
42 It follows ... that the dates on which OHIM informed Evets’ representative of the expiry of the registration of the trade marks QWIK TUNE and DANELECTRO ... must be deemed to be the dates on which Evets became aware of the loss of its rights ...".
Tags: Restitutio in integrum,
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06 October 2010 @ 10.29
Curious that this case was brought and fought by Computer Patent Annuities using an in house English solicitor as the lawyer
