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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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THURSDAY, 16 JANUARY 2014
Portugal: procedural issues on appealing trade mark decisions to court

Decisions of the Lisbon Commercial Court keep on being published in the Portuguese Intellectual Property Bulletin, in what seems to be a final push of the court to solve all the IP pending procedures (jurisdiction over these matters belongs nowadays to the Intellectual Property Court). This post deals with two of these rulings, published during this week, related to procedural issues on appealing trade mark decisions to court.

On 1 October 2013, in Case no. 67/13.1YHLSB, the Court issued a decision refusing to hear an appeal, as it considered that the same had not been filed within the applicable deadline (see BPI no. 010/2014, 15 January).

Under article 42 of the Portuguese Industrial Property Code, “appeals must be filed within two months of publication of the decisions in the Industrial Property Bulletin (…)”. As the INPI decision is not a judicial ruling and the judicial procedure only starts once the appeal is filed, the court held that the applicable deadline should not follow the rules laid out in the Civil Procedural Code, under which it would be interrupted on legal holidays. Differently, the rules set out in the Civil Code (namely, article 279 of the Civil Code) should apply and, therefore, the deadline to file the appeal runs without interruptions.

On 8 November 2013, in Case no. 1294/10.9TYLSB (see BPI no. 008/2014, 13 January), the Commercial Court decided two other procedural issues.

In the first of them, the court clarified that, in appeals of INPI’s decisions, the appellant intervention is limited to filing the appeal and further responses to the response filed by the appellee are not admissible. An exception to this rule might apply (at least before the 2013 civil procedural code) whenever the appellee defence rested on circumstances or facts which prevent the analysis of the merits of the case or prevent, modify or terminate the legal effect of the facts claimed by the author.

At the same, the Court clarified that the provisions regarding admissible types of evidence in appeals of INPI’s decisions are the ones established by the Industrial Property Code and not the ones contained in the Civil Procedure Code. Accordingly, the Court rejected to hear witnesses from both parties, stating that, in this kind of procedures, only documentary evidence is allowed (the court is also entitled to request expert clarifications if it finds it convenient, under article 45 of the Industrial Property Code).
Posted by: Pedro Malaquias @ 10.45
Tags: Portugal, INPI, Commercial Court, rules of procedure,
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