Archive for: Art. 2 Constitution

Procedural law, case VI SA/Wa 1239/11

August 7th, 2012, Tomasz Rychlicki

On 1 March 1994, the company France-Euro Agro applied to the Polish Patent Office for the registration of the word trade mark SOBIESKI Z-130304 for goods in Class 33 such as alcoholic beverages except beer. In its decision of March 1997, the PPO refused to register the applied trade mark because of the similarity with the word-figurative trade mark A SOBIESKI POLISH VODKA R-85456 that was registered with the earlier priority for the same goods in Class 33. This trade mark is currently owned by BELVEDERE S.A. France-Euro Agro withdrew its request for re-examination of the case. However, on December 2005, BELVEDERE requested the PPO to repeal the refusal based on the provisions of Article 154 § 1 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.

A final decision, on the basis of which none of the parties acquired any rights, may be at any time repealed or amended by the public administration authority which issued the decision or by the authority of higher level if it is justified by the public interest or fair interest of the party.

The Company noted that the risk of misleading potential consumers has been eliminated as the owner of both trade marks is now the same entity. BELVEDERE argued also that the PPO does not respect the constitutional rule of law and equal treatment of entities in the application of law, because it has registered three word-figurative trade marks Jan III Sobieski SJ for BRITISH AMERICAN TOBACCO POLSKA TRADING Sp. z o.o., despite the existence of the earlier right of protection for the trade mark A SOBIESKI POLISH VODKA R-85456. The PPO refused to repeal the decision of 1997. The PPO emphasized that decisions taken in such proceedings are discretionary, which means that the PPO examines, whether in the particular situation, the public interest or the fair interests of a party is in favor of the repeal of the final decision. The requirements of public interest or the interests of the parties must be assessed on an individual case and must receive individualized content, resulting from the factual and legal issues. The interest of the party should be “fair” within the objective meaning i.e. it has to be justified by circumstances of the case and accepted under applicable law, also from the standpoint of public interest. According to Polish legal doctrine, the term “public interest” is not defined by the law, and the content of this concept is given by the adjudicating body. The scope of the discretion of the administrative body during the recognition of such issues is limited, for instance by the existence of general principles of administrative proceedings, such as the public interest and fair interest of citizens. The fair interests of citizens is not only deemed as the interest of parties involved in this particular case, but also the interests of other parties to the proceedings before the Patent Office, in this case those who have applied for trade marks after the refusal of March 1997. By withdrawing the request for re-examination of the matter, France-Euro Agro waived its right to appeal, which led to the ultimate end of the proceedings and allowed other entities to apply for trade mark protection. BELVEDERE filed a complaint against this decision.

R-85456

The Voivodeship Administrative Court in Warsaw in its judgment of 7 December 2011 case file VI SA/Wa 1239/11 dismissed it and held that the proceedings to repeal the final decision should not be regarded as a retrial of the case. The Court held that both the institution of proceedings de novo, as well as the repeal of the final decision, are procedures used to verify the faulty decisions, that allows for setting the decision aside, in the situations specified by law, despite its finality. Given the exceptional nature of these procedures, they cannot be abused by a broad interpretation of the conditions of admissibility of their application. The overriding principle is to guarantee the sustainability of the final administrative decision. The Court agreed with the PPO that BELVEDERE could file requests for the invalidation of the rights of protection for trade marks JAN III SOBIESKI JS.

Polish patent attorneys, case SK 43/04

September 15th, 2006, Tomasz Rychlicki

Tadeusz Rejman, a Polish patent attorney, was representing his client before the public prosecutor’s office in case of a trade mark infringement. The public prosecutor’s office discontinued the investigations and decided that Tadeusz Rejman is not entitled to represent a person during criminal proceedings. An advocate representing Tadeusz Rejman filed a complaint to the Constitutional Tribunal challenging the constitutionality of the provisions of Article 88 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments. According to Mr Rejman, the challenged provisions infringed on Article 2 and Article 65 of the Polish Consitution.

Article 2.
The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.

Article 65
1. Everyone shall have the freedom to choose and to pursue his occupation and to choose his place of work. Exceptions shall be specified by statute.

2. An obligation to work may be imposed only by statute.

3. The permanent employment of children under 16 years of age shall be prohibited. The types and nature of admissible employment shall be specified by statute.

4. A minimum level of remuneration for work, or the manner of setting its levels shall be specified by statute.

5. Public authorities shall pursue policies aiming at full, productive employment by implementing programmes to combat unemployment, including the organization of and support for occupational advice and training, as well as public works and economic intervention.

The unconstitutionality of Article 88 of the CRPC was based on the fact that patent attorneys do not have the legitimacy to act in criminal proceedings as a representative of a party, which in consequence violates the rule of a democratic state and that the exclusion of patent attorneys from cases relating to industrial property protection in criminal proceedings, is restricting their right to act on behalf of their clients in cases where they have the knowledge and preparation on a much higher level than other practitioners. This exclusion is also a violation of their constitutional right to free practice.

The Constitutional Tribunal in its judgment of 27 July 2006 case file SK 43/04, published in Orzecznictwo Trybunału Konstytucyjnego Seria A, 2006, No. 7, item 89, ruled that representation of the sufferer in criminal investigations proceedings conducted by the prosecuting authority does not fall within the scope of the patent attorney profession. These steps can be entrusted only to an advocate or a legal advisor where appropriate.