Trade mark law, case II GSK 2803/14

March 20th, 2015, Tomasz Rychlicki

The Polish Patent Office dismissed the request to invalidate the right of protection for the word trade mark PHYTOLYZIN R-195394. The request was filed by Dr. med. Matthias Rath, the owner of the earlier International trade mark registration LyCin IR-813677. The Voivodeship Administrative Court in its judgment of 15 November 2012 case file VI SA/Wa 790/12 dismissed a complaint filed against this decision, and the Supreme Administrative Court in its judgment of 3 July 2014 case file II GSK 492/13 dismissed a cassation complaint filed by Dr. med. Matthias Rath.

On November 2014, Mr Rath filed before the Supreme Administrative Court a request for the annulment of previous proceedings, and a motion to reopen the proceedings and to issue an award of costs in accordance with prescribed procedure and also submitted as a supplement to the cassation complaint the decision of the Office for Harmonisation in the Internal Market of March 2013 on invalidity of the trade mark PHYTOLIZIN along with its certified translation into Polish. Mr Rath argued that the proceeding should be deemed by the Court as invalid because as the representative of the trademark owner appeared an attorney who submitted at the hearing a substitution of PoA as signed of July 2014. However, the power of attorney was invalid, because it was issued on behalf of another company, which was not a party to the proceedings.

The Supreme Administrative Court in its judgment of 9 January 2015 case file II GSK 2803/14 rejected the request and held that such motion is allowed if a party does not have the capacity and standing to bring proceedings or was not properly represented or if as a result of violations of the law was deprived of possible actions. However, the reopening cannot be requested if, before the judgment becomes final the inability to act ceased, the lack of proper representation was raised by way of objection, or a party has confirmed all procedural actions. These pleas and arguments for reopening, however, did not apply to Mr Rath. The argument for reopening of the proceedings was based on lack of adequate representation refered to the representation of the trade mark owner, not Mr Rath, and such a request may only be raised by a party that was not properly represented.