In the Case “SPEED PUBLICIDAD SACI C/ CISLAGHI, ADOLFO ALBERTO S/ APEL. ADMINISTRATIVE RESOLUTION” (Case No. 1806/2021) dated March 10, 2022, Chamber I of the Civil and Commercial Federal Court of Appeals analyzed the introduction of new evidence during the filing of the Direct Appeal.
The dispute began when Speed Publicidad Saci applied for the “Awitas Terma” and “Agüitas Terma” trademarks registrations in class 32, which Adolfo Alberto Cislaghi opposed, based on his trademark “Aüita” registered since 2015 in the same class.
Due to the fact that the TMO declared the opposition founded, SPEED filed a direct appeal before the Court of Appeals.
The appellant argued that his right to defense had been violated given that the TMO had not considered his response to the opposition and the limitation made therein. Lastly, they added that after the dispute was closed, the Trademarks “Awitas Terma” and “Agüitas Terma” were granted in class 32, which contradicted the decision that declared the marks to be confusingly similar.
In order to demonstrate the foregoing, the appellant offered documentary evidence, informative addressed to the TMO – referring to the opposition’s reply briefs, the trademarks owned by him and those registered by the opponent -, informative to different businesses – concerning the commercialization of products with the “Terma” sign- and accounting expert evidence.
The Court highlighted that in the procedure before the administrative instance the petitioner and the opponent had to: base their position, offer evidence and file their final arguments. When the applicant appealed the TMO´s final resolution with a direct appeal, raising the conflict to the Court of Appeals, he should not have introduced new evidence.
This situation derives from the fact that together with the filing of the direct appeal there is no possibility, normally, of offering evidence. However, it should be taken into account that the production of evidence denied in an administrative instance or related to new facts could have been reconsidered.
In this sense, the Court emphasizes that the role of the Court in the direct appeal is...
