In the Madrid System for international trademark registration, failure to meet a deadline can sometimes be excused if the necessary communication did not reach WIPO on time because of: (i) a postal service failure or interruption, (ii) a delivery service failure or interruption, or in the case of communications sent electronically (iii) a "failure in the electronic communication with [WIPO], or which affects the locality of the interested party owing to extraordinary circumstances beyond the control of the interested party...".  The Madrid System's Regulations (Rule 5) set out detailed criteria for when deadlines missed because of communications failures or interruptions will be excused, and the party who missed its deadline must normally submit evidence to establish that it meets these criteria (e.g., that the party sent the necessary communication not later than five days after regaining access to the interrupted communications service).

To help Madrid System users during this time of disruption, WIPO just announced that it will "treat favorably any request made under Rule 5 of the Regulations citing COVID-19 related issues and not require that [the interested party] ... submit evidence in respect thereof". This applies to brand owners (i.e., applicants and registration holders), as well as to the Trademarks Offices of Madrid System jurisdictions, who miss a deadline for sending a communication to WIPO — such as a response to an irregularity notice, or instructions to pay a fee from the party's WIPO account — because of COVID-19. If a missed deadline is excused under Rule 5, the late communication must still reach WIPO no later than six months after the original deadline, so expedient action will remain important.

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Originally Published 22 April, 2020

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