Judgment — ECLI:EU:T:2009:155
Date: 2009-05-13
Language of the case: English
Court formation: Eighth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Restitutio in integrum
Procedure: Action for annulment - unfounded

Summary of the Judgment 1. Community trade mark – Procedural provisions – Restitutio in integrum – Conditions (Council Regulation No 40/94, Art. 78(1)) 2. Community trade mark – Procedural provisions – Restitutio in integrum – Conditions (Council Regulation No 40/94, Art. 78(1)) 1. Under Article 78(1) of Regulation No 40/94 on the Community trade mark, ‘[t]he … proprietor of a Community trade mark … who, in spite of all due care required by the circumstances having been taken, was unable to observe a time-limit vis‑à‑vis the Office for Harmonisation in the Internal Market (Trade Marks and Designs) shall, upon application, have his rights re‑established if the non‑observance in question has the direct consequence, by virtue of the provisions of this Regulation, of causing the loss of any right … ’. It is apparent from that provision that restitutio in integrum is subject to two requirements, the first being that the party has exercised all due care required by the circumstances, and the second that the non-observance by the party has the direct consequence of causing the loss of any right or means of redress. It is also apparent from that provision that the requirement to exercise due care lies in the first instance with the proprietor of the trade mark. Thus, if the proprietor delegates administrative tasks relating to the renewal of a mark, it must ensure that the person chosen offers the assurance necessary to enable it to be assumed that those tasks will be carried out properly. Since those tasks have been delegated, the person chosen is subject to the requirement to exercise due care just as much as the proprietor. Since that person acts on behalf of and in the name of the proprietor, its actions must be regarded as being the proprietor’s actions. (see paras 12-15) 2. The words ‘all due care required by the circumstances’ in Article 78(1) of Regulation No 40/94 on the Community trade mark require a system of internal control and monitoring of time‑limits to be put in place that generally excludes the involuntary non-observance of time-limits, as laid down in the OHIM guidelines. It follows that restitutio in integrum may be granted only in the case of exceptional events, which cannot therefore be predicted from experience. Where a specialist firm installs a computerised renewal reminder system, the due care required by the circumstances demands, first, that the overall design of the system should ensure that time-limits are adhered to; second, that 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 third, that 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. Even if the design of a computerised renewal reminder system generally ensures that time-limits are adhered to, human errors in inputting data cannot be ruled out, even in cases where staff have been adequately trained, and adequately instructed and supervised. Human errors in inputting cannot be regarded as exceptional or unforeseeable events. Consequently, that system ought to provide for a mechanism for detecting and correcting such errors. Since such a mechanism has not been set up, the due care required by the circumstances has not been exercised. (see paras 26-28)