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Thursday, 25 September 2003

RESTITUTIO IN INTEGRUM GUIDANCE

Last week, the CFI decided the case of Beckett Expression, providing guidance on the circumstances in which a restitutio in integrum claim can be successful. This doctrine allows people having dealings with OHIM who have missed their deadlines through circumstances beyond their control to file the relevant documents outside the deadline within two months on payment of the relevant fee. Here the appellant had missed his deadline because he was ill on the day the document had to be sent in and this had escaped his secretary’s attention because of her heavy workload. The appeallant also did not file his restitutio in integrum claim until after the two month deadline. According to the CFI:

 The cause of the non-compliance upon which the restitutio in integrum claim could be based (OHIM had not denied that the appellant’s illness was an acceptable reasons for non-compliance) was removed once the director returned to work and at that point he could have discovered that the written statement was late. The fact that the secretary had a complex system for monitoring deadlines which she continually checked also militated against the success of the claim.

 The two-month period for lodging the restitutio in integrum claim begins to run from the date at which the impediment to compliance is removed, and not from when OHIM notifies that applicant that his appeal is late because such an interpretation would be manifestly contrary to Article 78(2) and because the CTMR does not oblige OHIM to send the letters.

 It is clear from the wording of Articles 78(1) and (3) of the CTMR that an application for restitutio in integrum must be made by a separate act, distinct from the act by which the appeal is brought. Additionally, an application for restitutio in integrum is deemed to only be filed once the separate fee for re-establishment of rights is paid. Therefore, there can be no restitutio in integrum claim implicit in a statement of appeal to OHIM.

The IPKat says: “If you’re responsible for filing documents with OHIM, for goodness sake, keep an eye on your deadlines and don’t leave it to the last minute. It seems strange though that the secretary’s system for monitoring deadlines actually worked against her and was one of the bars to a successful restitutio in integrum claim.”

Some Beckett expressions here and here


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