Looking on the bright side
Last year may have been one of the worst years in Greek financial history, but a series of new laws have made it a much better one in IP, as Eleni Lappa of Drakopoulos Law Firm explains
With the Greek economy in turbulence and social and political changes taking a toll on Greek people and their way of life, in 2010 Greece was almost permanently in the spotlight and the focus of various reports and broadcasts, especially as the future of its economy will affect all EU member states. Improvements have been made – there are already some positive results – and analysts continue to examine all best and worst case scenarios as the economy struggles to find means of development and progress.
IP owners have been asking how the crisis affects IP protection and when and whether things will improve or remain stagnant in IP. The crisis may actually prove to be a positive time for IP owners, if handled correctly.
In the last year there were various efforts to update the Greek legal framework, most of which affected the entire case processing in the administrative courts.
In particular, Law no 3900/2010 was just passed in Greece (published in the Official Gazette of 17 December 2010) designed to simplify and amend the procedures of the administrative courts. This new piece of legislation aims to make long delays, uncertainties in proceedings and the frustrating prolongations to ultimate dispute resolutions at the highest level, things of the past.
In Greece, trade mark matters are judicially split: administrative courts resolve issues such as validity and conflict with other prior rights, and civil courts handle actual infringement of rights in the market, either offline or online.
Various trade mark matters have ended up pending before administrative courts for many years, rendering a judicial resolution delayed for so long almost pointless. This became especially frustrating when an infringement proceeding was concurrently running before civil courts, as mostly it was stayed until the administrative courts irrevocably resolved the trade mark issue which usually took years. Clearly, a reform in the process was needed.
The law provides for direct recourse to the highest administrative court – the Council of State -which may be directly requested by a lower court, for the benefit of the parties, in order to side-step the intermediate court levels and avoid years of delay. Any party with a legitimate interest in the resolution of a particular question of law brought before the Council of State may file a legal brief and present its position before the Council of State.
Other practical improvements have been made. Formal notices for hearings that were stayed due to extraordinary circumstances are no longer required. The court rapporteur is expressly required to attach their written report to the court file at least three days before the hearing for the parties' own information. The report must include the historical background, the common ground of evidence filed and the questions on the case. Documents-only proceedings receive expedited treatment by the Council of State. The initial examination of the case before the Council of State determines whether it is a prima facie case or not and, accordingly, remands the case to the lower court or throws it out of court. An appeal to the Council of State must include in its preamble a confirmation by the petitioning party, the appellant, that no relevant Council of State precedent exists already in the issue or that the lower court's decision is in direct conflict with an earlier precedent of the Council of State. If an administrative officer involved in the case before it goes to court, has likely breached their fiduciary duty to abide by the law and apply reasonable care, an ex officio investigation may be ordered into them. The statute of limitations does not start running until the pending case is irrevocably decided or until the hearing is cancelled.
All of the above changes contribute towards a more reliable administrative court process and one that has an internal procedure for weeding out unnecessary claims, and alleviate the caseload that may be unnecessarily pending before the Council of State on matters already ruled on.
Further to the above, a recent series of alternative dispute resolution (ADR) friendly decisions were issued by the Greek Supreme Civil Court, Areios Pagos; this, in conjunction with Law no 3898/2010 (published in the Official Gazette of December 16 2010) establishing mediation as a formal procedure for resolving disputes, is expected to lead to a more party-oriented dispute resolution process in Greece, be it as a judicial review as per the above, or an ADR. In particular the mediation law, in conformity with European Directive 2008/52/EC, sets the proper foundation for mediation: party-autonomy, certainty, efficiency, all of which are key factors that ensure adversaries' will opt for ADR, as those with ADR expertise already know. In particular, the mediation law, as well as establishing the standards for certification of ADR providers and mediators in particular (a qualification not formally well-recognised in Greece), also sets out the following parameters that ensure the viability of the procedure and its practical value in particular: it confirms the confidentiality of the mediation procedure as an added benefit to this voluntary process; it sets fee caps for mediators' compensation to ensure proceedings are not dragged out; and it defines the process for ensuring that the mediation agreement, which becomes equivalent to a Court Order if filed with the relevant court, is enforced.
For years ADR was neglected as an option for resolving commercial disputes in Greece, especially in relation to IP matters, with the exception of domain names and advertising or even competition complaints that have their own dispute resolution mechanisms. It is very promising to see that ADR is now being instilled in the Greek legal system and steps are being taken in the right direction for making it a highly important means of addressing a dispute as a first step, without immediately going to court.
During a time of crisis in the Greek economy, the above changes affecting the administrative courts process and the ADR routes are positive changes for the legal environment in Greece. Perhaps a difficult period was needed to be able to focus on important issues like the above that bring progress and development to Greece, a jurisdiction with healthy, positive, development-oriented factors which will hopefully prevail over the negative, unhealthy and corrupt practices of the past, and broadcast to the world the country's wholesome side.