The offer and production of evidence in direct appeals before the Federal Courts
In re Westrock Shared Services LLC v. West Pharmaceutical Services INC, the Third Division of the Federal Court of Appeals in Civil and Commercial Matters decided on the dismissal in limine of the direct appeal against the resolution issued by the National Directorate of Trademarks of the National Institute of Industrial Property (INPI). In addition, the Court of Appeals ruled on whether it was appropriate to offer and produce evidence at the appellate stage.
With respect to the dismissal in limine, the Court of Appeals pointed out that there were no doubts about the admissibility of the direct appeal, based on Section 17 of Law No. 22362 and Annex I of INPI Resolution No. 183/18, Section 10. Furthermore, it stated that a decision rejecting the access to justice through direct appeal would violate the constitutional rights established in Sections 14 and 18 of the National Constitution, which are directly linked to the right to petition.
In our opinion, the main issue did not revolve around the admissibility of the direct appeal. The legislation is clear in authorizing the review of administrative decisions before the courts. Yet, the Court of Appeals further examined the limits of the direct appeal. For such purpose, it analyzed whether the offer and production of evidence should be admitted at the judicial stage.
In so deciding, the Appellate Court examined the provisions of the new Section 17 of Law No. 22362, which states that opposition conflicts that were previously handled by the Federal Courts in accordance with the rules of the ordinary process, are now decided by INPI’s National Directorate of Trademarks. In this way, INPI took on the role of an administrative court, whose resolutions are reviewed through a direct appeal before the Federal Court of Appeals. The latter acts as a reviewing body.
The Federal Court cited the regulatory decree of Law No. 22362 and INPI Resolution No. 183/18, which states that “the filing of the direct appeal must comply with the formalities provided for by the Civil and Commercial Code of Procedure”. Therefore, the parties must comply with the deadlines to offer evidence and the decisions on its admissibility or rejection are unappealable.
In the case under examination, the Court of Appeals held that the direct appeal cannot be regarded as a judicial action. Instead, “the situation of the appellant must be considered as that of any party in a civil proceeding that seeks to produce evidence in the appellate stage”. In this regard, it pointed out that the trademark applicant, Westrock Shared Services LLC, showed disinterest at the administrative stage by not answering the opposition and not offering evidence in due time.
The same criterion was previously adopted by the Federal Court of Appeals in Administrative Matters in re Litoral Gas S.A. v. Enargas, wherein it stated that the offering and production of evidence had an exceptional character, so that the court of appeals did not become a first instance. Moreover, in re United Air Lines Inc. v. DNM it was confirmed that there was unanimity in the Divisions of the Court with respect to the exceptional nature of the offer and production of evidence at the Court of Appeals. In another decision, the Federal Court of Appeals in Administrative Matters held that it was appropriate to deny the production of evidence pursuant to Section 36(4) of the Civil and Commercial Code of Procedure.
In the case at hand, the Court of Appeals found that it was not appropriate for a party to offer and produce evidence if it previously showed no interest in answering the opposition and offering evidence in due time at the administrative stage. The Federal Court acts only as a reviewing body of the resolutions issued by the administrative agency.
This decision is relevant for it adopts a restrictive criterion with respect to the scope of the direct appeal.
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 Westrock Shared Services LLC v. West Pharmaceutical Services, (Federal Court of Appeals in Civil and Commercial Matters, Division III, March 8, 2022).
 Litoral Gas S.A. v. Enargas, (Federal Court of Appeals in Administrative Matters, Division IV, November 25, 2002)
 United Air Lines Inc. v. DNM, (Federal Court of Appeals in Administrative Matters, Division V, June 27, 2001).
 Alitisz, Constantino Miguel v. Public Bar Association of the Capital City, (Federal Court of Appeals in Administrative Matters, Division V, June 6, 2017).