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Article 104

Restitutio in integrum

  1. The applicant for or proprietor of an EU trade mark or any other party to proceedings before the Office who, in spite of all due care required by the circumstances having been taken, was unable to comply with a time limit vis-a-vis the Office shall, upon application, have his rights re-established if the obstacle to compliance has the direct consequence, by virtue of the provisions of this Regulation, of causing the loss of any right or means of redress.
  2. The application shall be filed in writing within two months of the removal of the obstacle to compliance with the time limit. The omitted act shall be completed within this period. The application shall only be admissible within the year immediately following the expiry of the unobserved time limit. In the case of non-submission of the request for renewal of registration or of non-payment of a renewal fee, the further period of six months provided in the third sentence of Article 53(3) shall be deducted from the period of one year.
  3. The application shall state the grounds on which it is based and shall set out the facts on which it relies. It shall not be deemed to be filed until the fee for re-establishment of rights has been paid.
  4. The department competent to decide on the omitted act shall decide upon the application.
  5. This Article shall not be applicable to the time limits referred to in paragraph 2 of this Article, Article 46(1) and (3) and Article 105.
  6. Where the applicant for or proprietor of an EU trade mark has his rights re-established, he may not invoke his rights vis-a-vis a third party who, in good faith, has put goods on the market or supplied services under a sign which is identical with, or similar to, the EU trade mark in the course of the period between the loss of rights in the application or in the EU trade mark and publication of the mention of re-establishment of those rights.
  7. A third party who may avail himself of the provisions of paragraph 6 may bring third party proceedings against the decision re-establishing the rights of the applicant for or proprietor of an EU trade mark within a period of two months as from the date of publication of the mention of re-establishment of those rights.
  8. Nothing in this Article shall limit the right of a Member State to grant restitutio in integrum in respect of time limits provided for in this Regulation and to be observed vis-à-vis the authorities of such State.