Judgment — ECLI:EU:T:2009:146
Date: 2009-05-07
Language of the case: English
Court formation: Third 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 - successful

Summary of the Judgment Community trade mark – Procedural provisions – Restitutio in integrum – Scope (Council Regulation No 40/94, Art. 78(5), as amended by Regulation No 422/2004) Article 78(5) of Regulation No 40/94 on the Community trade mark, as amended by Regulation 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’. 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. Therefore, the assessment 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. The 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. Next, doubt appears to be cast on the 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 that 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. 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. (see paras 43, 45-49)