Archive for: Art. 87 PBAC

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.

Categories: Art. 86 PBAC | Art. 87 PBAC | Polish Act on Proceedings Before Administrative Courts | Polish Chamber of Patent Attorneys | Polish courts | Polish law | Polish patent attorneys | Polish Supreme Administrative Court | Voivodeship Administrative Court.

Personal data protection, I OSK 1086/10

June 3rd, 2011, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 19 May 2011 case file I OSK 1086/10 acknowledged the principle that in case of a disclosure of personal data in the media, the press law and civil law regulations are applicable, and not the provisions of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments.

See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Categories: Art. 23 CC | Art. 24 CC | Art. 86 PBAC | Art. 87 PBAC | personal rights or interests | Polish Act on Press Law | Polish Act on Proceedings Before Administrative Courts | Polish Act on Protection of Personal Data | Polish Civil Code | Polish Supreme Administrative Court | press law.

Trade mark law, case VI SA/Wa 370/10

July 21st, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in its order 17 June 2010 case file VI SA/Wa 370/10 held that if the party did not act properly within a given period of time in court proceedings without its fault, the court may decide on the request, on the restoration of a deadline. The request for restoration shall be filed within the Court, in which the act was to be made within seven days from the time as the cause of transgression ceased. The request for restoration of a deadline to file a complaint must be filed through the court or authority. The restoration of a deadline has unique nature and can only occur if the party convincingly proves of the absence of its guilt. The lack of guilt means a situation in which circumstances that were impossible to overcome and that were independent from the party, have occurred , and these were the reasons that the deadline set by the law was exceeded (see the order of the Supreme Administrative Court of 11 April 2008 case file I OZ 246/08).

In assessing the occurrence of this condition, the Court has to adopt an objective “test of care”, which may be required from everyone duly taking care of its interests. The restoration is therefore not admissible if the party is guilty of even slight negligence. If the party is represented by a professional representative, while assessing the guilt of not preserving a deadline, the representative acts should be considered, adopting an objective test of care, which may be required from a professional legal representative duly caring for the interests of its client, with the reservation that negligence of people, whom such representative employs, burden the representative itself, and therefore do not release the party from the guilt in non-reserving a deadline.

This means that the negligence made by administrative staff in activities necessary to preserve the procedural deadline, which was commissioned by a patent attorney who is a representative of a party, does not justify the restoration of a missed deadline.

Terravita Holding Establishment from Vaduz, Lichtenstein was a party who lost this case. See also “Trade mark law, case VI SA/Wa 370/10“.

Categories: Art. 53 PBAC | Art. 54 PBAC | Art. 58 PBAC | Art. 86 PBAC | Art. 87 PBAC | non-traditional trade marks | Polish Act on Proceedings Before Administrative Courts | product packaging | trade mark invalidation | trademark law | Voivodeship Administrative Court.