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Sunday, 20 March 2005

MAKE A DATE WITH OHIM


The IPKat brings you a definition of Restitutio in Integrum (the ability of a party before OHIM to have his rights restored if he misses a deadline in exceptional circumstances) under Art.78 of the Community Trade Mark Regulation, courtesy of the OHIM Second Board of Appeal in Deutsch Telekom v E! Online. In that case, a deadline had been missed because the a worker in the office of the opponent’s legal representative had accidentally deleted the deadline from the firm’s computer system:


Words trade mark lawyers should keep in mind


No right is prejudiced where failure to comply with a deadline is a result of the existence of an excusable error, unforeseeable circumstances or force majeure.

Both force majeure and unforeseen circumstances involve an objective element relating to abnormal circumstances which are unconnected to the trader in question and a subjective element involving the obligation on its part to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. This subjective element includes an obligation to pay close attention to the procedure in question and demonstrate diligence in order to comply with prescribed time limits.
Where a party employs a profession representative, that duty of due diligence extends to the professional representative.

In this case, a working system in the office of a professional representative which allowed the deletion by a single member of staff of such an important deadline as a filing date for a statement of grounds of appeal, without any fail-safe mechanism, either computerized or through simple double checking by another member of staff, displays an absence of due care which cannot be remedied by the application of Article 78 CTMR. If due care had been taken, the mistake would have been noticed by the partner supervising the work of the staff-member in question or would have been picked up by the electronic monitoring system. Here the error was not unforeseeable since, where the responsibility for carrying out a vital task is placed on one individual, there is always the possibility of human error and of that error going unnoticed until it is too late to remedy.

The IPKat has been idly wondering what measure of damages would be payable by a lawyer to its client for the missed opportunity to oppose a trade mark.

How to meet deadlines here and here

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