PART
11 PETITIONS
AND
APPEAL
Rule 1100.
Nature of the function of Examiners. The function of
determining
whether or not an application for registration or renewal thereof
should
be allowed or denied under the facts disclosed in the application and
in
the references consulted by the Examiner and under the applicable law
(statutory
and decisional), is a quasi-judicial function and involves the exercise
of judicial discretion.
Thus, with respect
to such function, the Director cannot lawfully exercise direct control,
direction and supervision over the Examiners but only general
supervision,
exercised through a review of the recommendation they may make for the
grant of registration and of other actions, and through a review of
their
adverse decisions by petition or appeal.
Rule
1101.
Petition to the Director to question the correctness of the
action of
an Examiner on a matter not subject to appeal. Petition
may be filed with the Director from any repeated action or requirement
of the Examiner which is not subject to appeal and in other appropriate
circumstances. Such petition, and any other petition which may be
filed, must contain a statement of the facts involved and the point or
points to be reviewed. Briefs or memoranda, if any, in support
thereof
should accompany or be embodied in the petition. The Examiner, as
the case may be, may be directed by the Director to furnish a written
statement
setting forth the reasons for his decision upon the matter averred in
the
petition, supplying a copy thereof to the petitioner. The mere
filing
of a petition will not stay the maximum period of four months counted
from
the mailing date of the Examiner’s action subject of the appeal for
replying
to an Examiner’s action nor act as a stay of other proceedings.
Rule
1102.
Appeals to the Director. Every applicant for the
registration
of a mark or other mark of ownership may, upon the final refusal of the
Examiner to allow registration, appeal the matter to the
Director.
Appeal may also be taken to the Director from any adverse action of the
Examiner in any matter over which these Regulations give original
jurisdiction
to the Examiner. A second adverse decision by the Examiner on the
same grounds may be considered as final by the applicant, petitioner,
or
registrant for purposes of appeal.
Rule
1103.
Effect of a final decision of an Examiner which is not
appealed.
A final decision of an Examiner which is not appealed to the Director
within
the time permitted, or, if appealed, the appeal is not prosecuted,
shall
be considered as final to all intents and purposes, and shall have the
effect of res judicata in respect of any subsequent action on
the
same subject matter.
If an application
is considered abandoned for failure of the applicant to respond to an
action
of the examiner on the merits e.g. citation of confusingly similar
marks,
the order declaring the application as abandoned which has become final
shall likewise have the effect of res judicata.
Rule
1104.
Time and manner of appeal. Any petition or appeal
must be
taken by filing the petition in duplicate or a notice of appeal, as the
case may be, and payment of the required fee within two (2)
months
from the mailing date of the action appealed from, must specify the
various
grounds upon which the appeal is taken, and must be signed by the
petitioner
or appellant or by his attorney of record. The period herein provided
shall,
in no case, exceed the maximum period of four (4) months from the
mailing
date of the action appealed from.
Rule
1105.
Appellant’s brief required. In case of an appeal, the
appellant
shall, within two (2) months, without extension, from the date of
filing
of the notice of appeal, file a brief of the authorities and arguments
on which he relies to maintain his appeal. On failure to file the
brief within the time allowed, the appeal shall stand dismissed.
Rule
1106.
The Examiner’s answer. The Examiner shall furnish a
written
statement in answer to the petition or appellant’s brief, as the case
may
be, within two (2) months from the order of the Director
directing
him to submit such statement. Copy of such statement shall be
served
on the petitioner or appellant by the Examiner.
Rule
1107.
Appellant’s reply. In case of an appeal, the
appellant may
file a reply brief directed only to such new points as may be raised in
the Examiner’s answer, within one (1) month from the date copy of such
answer is received by him.
Rule 1108. Appeal
to the Director General. The decision or order of the
Director
shall become final and executory fifteen (15) days after receipt of a
copy
thereof by the appellant unless within the said period, a motion
for reconsideration is filed with the Director or an appeal to the
Director
General has been perfected by filing a notice of appeal and payment of
the required fee.
Only one motion for
reconsideration of the decision or order of the Director shall be
allowed.
Rule 1109. Appellant’s
brief required. The appellant shall, within one (1) month
from
the date of filing of the notice of appeal, file a brief of the
authorities
and arguments on which he relies to maintain his appeal. On
failure
to file the brief within the time allowed, the appeal shall stand
dismissed.
Rule
1110. Director’s comment. The Director shall
submit
within one (1) month his comments on the appellant’s brief if so
required
by the Director General.
Rule
1111.
Appeal to the Court of Appeals. The decision of the
Director
General shall be final and executory unless an appeal to the Court of
Appeals
is perfected in accordance with the Rules of Court applicable to
appeals
from decisions of Regional Trial Courts. No motion for
reconsideration
of the decision or order of the Director General shall be allowed.
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