WHEN IS A COMPLAINANT A PARTY? JURISDICTION REPORT: POLAND
Anna Szajna Patpol
On June 28, 2010, the District Administrative Court in Warsaw passed a judgment on the publication of a new trademark application and the filing of observations by a third party on potential obstacles to granting protection. Te court also addressed the issue of the legal status of the party filing these observations.
In the meaning of Article 235.2 of the Law on Industrial Property, only the applicant is party to grant proceedings before the patent office. So according to the district court’s judgment, only the applicant, and not the party filing observations, could be regarded as party to the proceedings.
In this case, the party filing observations (complaining party) petitioned for the trademark registration to be refused. Te patent office later advised the representative that its petition was attached to the files of the trademark application and that the office would announce its verdict on the application in its Official Journal.
Te case was subsequently heard by the District Administrative Court in Warsaw. Te complaining party argued in court that giving information in the course of proceedings to the third party (e.g. a party filing observations) should be regarded as a regular legal step or an administrative act performed by an official body. Te court disagreed and stressed that the official letter informing the complaining party that the patent office does not provide updates on proceedings to third parties, does not mean that the complaining party becomes a party the proceedings. On the other hand, the patent office did not deny the applicant its right to information.
Pursuant to Article 143 of the Law on Industrial Property, the patent office must publish a trademark application within three months from its filing date. Tird parties can acquaint themselves with the application as soon as it is published, as well as with the list of goods and services for which the mark is destined. From that moment, they may also submit their observations to the office on the potential grounds for denying protection.
As for the subject matter, the court decided that the complaining party had the right to file its observations as to potential grounds for rejecting the application, but that it could not be regarded as a party to the proceedings. Te patent office may choose to take the filed observations into account during the application proceedings. Nonetheless, a party filing the observations does not become a party to the proceedings.
According to Article 246 of the Law on Industrial Property, within six months of the publication in the Official Journal of information about the grant of protection, any person can file an opposition against a final decision of the patent office granting any exclusive protection right.
“ [T]HE PATENT OFFICE MUST PUBLISH A TRADEMARK APPLICATION WITHIN THREE MONTHS FROM ITS FILING DATE. THIRD PARTIES CAN ACQUAINT THEMSELVES WITH THE APPLICATION AS SOON AS IT IS PUBLISHED, AS WELL AS WITH THE LIST OF GOODS AND SERVICES FOR WHICH THE MARK IS DESTINED. FROM THAT MOMENT, THEY MAY ALSO SUBMIT THEIR OBSERVATIONS TO THE OFFICE ON THE POTENTIAL GROUNDS FOR DENYING PROTECTION.”
Further, any person with a legitimate interest may file a request for invalidation of an exclusive right, provided that they can prove that the statutory requirements for the grant of that right have not been fulfilled.
Anna Szajna is a lawyer at Patpol in Warsaw. She can be contacted at:
anna.szajna@
patpol.com.pl
92 World Intellectual Property Review September/October 2010
www.worldipreview.com
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