Power of Attorney Certified by Notary Should Have a Date of Signing- Decision of IP Courts First Instance is Cancelled by IP Courts Presidium in Favor of Sojuzpatents Client - Golden Lady Company S.p.A.

Nov 29 2016

 On November 28, 2016, the Presidium of the IP Court in the case SIP-70/2016 ruled to cancel the decision of the court of first instance and send the case for retrial by another patent of judges. The dispute relates to validity of a trademark ATTIVA registered for tights and socks in the name of the company, not being related to Golden Lady Group – manufacturer of famous OMSA ATTIVA tights. Previously Rospatent invalidated this registration, but than the court of the first instance cancelled this decision of Rospatent, stating that ATTIVA trademark should be considered valid. Appealing the decision of Rospatent, the right holder filed a lot of additional documents that were not subject to consideration on administrative stage. Rospatent also pleaded for filing new documents, but was refused, since the Court decided that Rospatent is limited in its procedural rights when defending its already taken decision. The Presidium of IP Court did not agree with such an approach, saying that if one party provides additional evidence, all the other parties are free to provide counter-evidence, and this order is universal and should be applied in disputes of public character. The Presidium of the IP Court stated that conclusions of the Court of the first instance contradicted to the evidence in the case file, therefore the decision in question should be cancelled and the case sent back to the court of the first instance for reconsideration.

It was also a matter of dispute, whether a court may accept a power of attorney, which does not bear the date of its signature, but has the date of notarial certification. The Presidium agreed, that in case the Notary just confirmed that the signature is authentic, but did not confirm, that the signature was made before him, the date of notarial certification cannot be considered to be a date of the power of attorney. Therefore such a power of attorney, not bearing a clear date of signature, should be considered void. Another PoA of the same representative had two different dates and the court did not agree that one of them could be considered as a misprint, so that PoA was also considered void. Golden Lady Company S.p.A. was represented in this case by senior lawyers of Sojuzpatent LLC, Alexey Zalesov, Tatiana Ekhlas and Irina Ozolina.

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Nov 29 2016

On November 28, 2016, the Presidium of the IP Court canceled the decision of the first instance in the case SIP-70/2016 and sent the case back for a new trial by a different panel of judges. The Presidium agreed with the arguments of Golden Lady Company S.p.A that the conclusions of the court of the first instance contradicted to the facts and case materials and that additional evidence, provided by the parties after administrative procedure, should be also taken into consideration by court. Also, the Presidium stated, that a Power of Attorney should clearly indicate the date when it is signed, and if a Notary just acknowledges the authentic signature, but does not confirm that this signature was put in his presence, the date of notarial certification cannot be the date of PoA. A PoA without a date is void. A power of attorney, having two different dates on it should be also considered void.

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