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No restitutio in integrum for Neurim, says CFI

On 17 September the Court of First Instance of the European Communities gave judgment in Case T-218/06 Neurim Pharmaceuticals (1991) Ltd v Office for Harmonisation in the Internal Market, Eurim‑Pharm Arzneimittel GmbH. In essence, Neurim applied to register the figurative mark NEURIM as a Community trade mark for pharmaceutical products and medical devices (Classes 5 and 10). The application was filed in English, with German as the second language. Eurim-Pharm opposed, citing its earlier registered trade mark EURIM-PHARM for medicines in Class 5 and maintaining that, given the similarity of marks and products, there was a likelihood of confusion. The notice of opposition was filed in German.

The Opposition Division upheld the opposition and notified the parties by fax on the same day. Neurim appealed, filing its notice of appeal in English. OHIM acknowledged receipt of the notice of appeal by fax, then informed Neurim by a second fax that there had been a deficiency relating to the language of the notice of appeal under Rule 48(2) the Implementing Regulation: Neurim was asked to file a translation within one month of the submission of the original documents in accordance with Rule 96(1) of the same Regulation, which was done.

In April 2006 a new notice of appeal was filed in German. The notice requested the continuation of the proceedings under Article 78(a) of Regulation 40/94 and authorised the payment of the fees for the request. Neurim also filed a request for restitutio in integrum, claiming that (i) it had instructed a secretary that a German version of the notice of appeal be sent to OHIM; (ii) for reasons that could not be explained, the second page of the notice of appeal had been sent in English and (iii) the secretary had serious family problems at the time of the appeal.

The Board of Appeal held that the appeal was inadmissible. In addition, the requests for continuation and for restitutio in integrum were deemed not to have been filed since the payment of the fees had not been authorized on time. Neurim appealed.

The Court of First Instance dismissed the appeal. In its view,

* under Rule 96(1) Neurim had to submit a translation within one month of the filing date of the notice of appeal. As the notice of appeal in German was filed after that period had expired, the Board of Appeal was right to dismiss the appeal.

* OHIM is not obliged to notify an applicant of the necessity to file a translation.

* a request for continuation is admissible only if it is presented within two months of the expiry of the relevant time limit and the fee for continuation of the proceedings is paid. Here the translation of the notice of appeal was filed (and the payment of the fees authorised) after the expiry of the deadline.

* a request for restitutio in integrum must be filed within two months of the removal of the cause of non-compliance (here the fact that the secretary was unaware that the notice of appeal was sent in English). This was not done.

Posted by: Blog Administrator @ 05.55
Tags: CFI, Community trade mark opposition,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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