Case T‑277/06, Omnicare, Inc. v Office for Harmonisation in the Internal Market, Astellas Pharma GmbH, was decided last week by the Court of First Instance of the European Communities (CFU). This dispute concerns the availability of restitutio in integrum for missed appeal notices, which is of interest to all Community trade mark practitioners. In short, the CFI concluded as follows: 

"43 Article 78(5) of Regulation No 40/94, as amended by Council Regulation (EC) No 422/2004 ..., provides that ‘this Article shall not be applicable to the time‑limits referred to in paragraph 2 of this Article, Article 42(1) and (3) and Article 78a’.

44 It must be observed that neither the preamble to Regulation No 422/2004 nor the travaux préparatoires for that regulation shed any useful light on the intentions of the legislature.

45 The phrase ‘to the time-limits referred to in … Article 78a’ in Article 78(5) of Regulation No 40/94, as amended, cannot, however, be interpreted to mean that the time-limits laid down by the provisions referred to in Article 78a(2) of Regulation No 40/94 are also to be excluded from the scope of application of Article 78 of that regulation. Such time-limits are not ‘referred to’ in Article 78a of Regulation No 40/94.

46 Therefore, the assessment of the Board of Appeal that the mandatory time-limit for filing an opposition and the time-limit for filing an appeal are put on the same footing, both excluding restitutio in integrum, is incorrect.

47 The Board of Appeal’s reasoning that the legislature intended, in 2004, to specify that restitutio in integrum did not apply to Article 59 of Regulation No 40/94 is contradicted, first of all, by the absence of an express reference to Article 59 in the list of exceptions. If the legislature had intended to remove any doubt on that point, it could reasonably have been expected to do so expressly, specifically when it was amending Article 78(5) of Regulation No 40/94.

48 Next, doubt appears to be cast on the Board of Appeal’s reasoning based on a successive series of exclusions by the fact that Article 42 of Regulation No 40/94 is also referred to in Article 78a of that regulation. All the references to Article 42(1) and (3) of Regulation No 40/94 should logically have had to be removed from Article 78(5) of that regulation if the Board of Appeal’s reasoning was correct. However, that is clearly not the case, which supports the argument that the limitations in Article 78(5) of Regulation No 40/94 do not concern Article 59 thereof.

49 Lastly, as Article 78(5) of Regulation No 40/94 limits the procedural rights granted by that article to the parties, that provision must be interpreted strictly. The Board of Appeal’s interpretation, however, conflicts with that principle and, therefore, cannot be followed.

50 The contested decision must therefore be annulled".