Procedural law, case II GSK 248/14

February 26th, 2014, Tomasz Rychlicki

On August 2011, the Polish Patent Office invalidated the right of protection for a trade mark owned by a Polish entity. On 12 September 2012, the Austrian company and the Polish business filed a complaint against the decision of the PPO. The Austrian entrepreneur claimed that it is a legal successor in the case of the invalidated trade mark. As evidence, the company provided an agreement of transfer of trade mark rights.

In a letter of 6 November 2012, the Voivodeship Administrative Court in Warsaw called on the applicant, represented by the patent attorney, to submit a document setting out the authority to represent the applicant, i.e. the original or certified copy of an extract from the official register of companies, which would prove that a person who signed the PoA was a persons properly authorized to represent the applicant on the day of granting the power of attorney that has been attached to the complaint, together with a sworn translation into Polish, within thirty days under pain of dismissal of the action. The letter was delivered to the patent attorney on 12 November 2012. On 12 December 2012, the Court received a request for an extension of the deadline for filing the requested documents. The applicant argued that the person responsible in the applicant’s company for providing such documents was on leave in November 2012, and later, the document was sent by mail, however, it has not been delivered on time.

The Voivodeship Administrative Court in Warsaw in its order of 31 January 2013 case file VI SA/Wa 1810/12 rejected the complaint due to the failure to comply with the Court’s request of 6 November 2012. The Court noted that the deadline to correct formal deficiencies of a complaint is a statutory deadline. Statutory deadlines that are set for parties and participants in the proceedings cannot be extended or shortened. In addition, the VAC cited the order of the Supreme Administrative Court of 20 December 2006 case file I FSK 29/06, and noted that the applicant, while deciding to start its business in Poland, should properly protect its interests, by preparing documents that would authenticate PoAs granted to persons who represent the company, among others, in administrative proceedings. The Court also noted that 80 days have passed from the date of delivery of the letter to the attorney of the Austrian company, but the requested documents were not received by the Court.

In the letter of 20 March 2013, both applicants filed a request to restore the deadline in order to supplement formal deficiencies of the complaint. The request was based on the fact that the person authorized to issue and deliver of the document was long absent, and finally in December 2012, a copy of this document in German, was sent by mail. The whole delay was caused by the Christmas holidays, abroad stay, and his illness in January 2013. The application had attached a copy of the scanned document in German that was received via e-mail.

The Voivodeship Administrative Court in its order of 25 July 2013 case file VI SA/Wa 1810/12 refused to restore the deadline and ruled that the action in the administrative proceedings that was taken by the party after the expired deadline is deemed as ineffective, while, in the case where a party has failed to act without its fault, the court decides on the request to restore the deadline. The request should be submitted to the court in which the action was to be made ​​within seven days from the time of cessation of the cause of failure to comply with the deadline. The requesting party must substantiate circumstances indicating a lack of its fault in complying with the established deadline. The criterion of lack of fault, which is a prerequisite for the validity of the request to restore the deadline is based on the party’s fulfillment of an obligation to act in special care when making a procedural step. Both legal comentators and the case law of the Supreme Administrative Court states, that in assessing the occurrence of this evidence, the court should adopt an “objective measure of care” which may be required of each party who duly cares about their interests. The lack of fault can only be proved when the party could not remove the obstacle even with the greatest effort. The Court decided that the circumstances indicated by the applicant did not exclude the possibility to meet the deadline in order to fulfill formal deficiencies of the complaint.

The Supreme Administrative Court in its order of 19 February 2014 case file II GSK 248/14 dismissed the cassation complaint filed by both companies.