Trade mark law, case VI SA/Wa 1180/07

December 13th, 2007, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 5 November 2007 case file VI SA/Wa 1180/07 decided the case for the invalidation of the right of protection for the trade mark PANORAMA TURYSTYKI R-145420. The issue of the discontinuance of the proceedings appeared during the hearing before the Polish Patent Office. The PPO decided to stay the proceedings until the civil court decide on the authorship of the trade mark. One of the parties filed a complaint against this decision. The Court ruled that the decision on the matter of who has the copyright to the sign in question is a preliminary issue within the meaning of Article 97 § 1 pt 4 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.

Article 97. Compulsory stay
§ 1. A public administration authority shall order a stay of the proceedings:
1) in case of the death of one of the parties if it is impossible to summon heirs of the deceased party to participate in the proceedings, and if no circumstances described in Article 30.5 occurred, and if the proceedings may not be discontinued as groundless (Article 105),
2) in case of death of the statutory representative of a party,
3) in case a party or his statutory representative loses the capacity to enter into legal transaction,
4) if deciding the matter and issuance of the decision is conditioned upon a previous resolution of a preliminary issue by another authority or court.

§ 2. If the grounds for stay have ceased to exist, the public administration authority shall ex officioor upon demand of a party lift the stay of the proceedings.

The Court held that the PPO was allowed to summon the party to apply for the civil proceedings and to order a stay of proceedings in one order. Such order is not subject to the appeal. It can be only challenged in the complaint against the decision that also contains the conclusions of preliminary issue.