Newsletter
COMPETENT AGENCY FOR ACCEPTING GROUNDS FOR ADMINISTRATIVE APPEAL
Under the Administrative Appeals Act, as in force since 1 July 2000, an administrative appeal and its grounds should be filed with the administrative agency that originally made the contested decision, and that agency should refer the appeal up to the appellate agency that will decide the appeal. But with regard to cases in which an appellant has failed to state the grounds for an appeal, and is instructed by the appellate agency to state the grounds within a specified period, the Act makes no explicit provision as to whether the grounds should then be filed with the original agency, or with the appellate agency. In its current practice in appeals against trademark and patent decisions, the Ministry of Economic Affairs (MOEA), as the appellate agency of the Intellectual Property Office (IPO), usually states in its instruction that the grounds should be filed directly with the original decision-making agency, i.e. the IPO.
However, in a 2004 ruling in an administrative dispute over the application of the Fair Trade Act, the Supreme Administrative Court took a very different view from that of the MOEA. In its ruling, which upheld a 2002 ruling of the Taipei High Administrative Court and a 2002 appeal decision of the Executive Yuan (the appellate agency in the case concerned), the Court held that the grounds for appeal in the case should have been filed with the Executive Yuan (the appellate agency), as the agency that had given the appellant notice to submit them; by instead filing them with the Fair Trade Commission (the original agency) the appellant had failed to comply with the Act.
It remains to be seen how the above opinion of the Supreme Administrative Court will be fol-lowed, and whether it will lead to the MOEA's changing its current practice in disputes over trademark and patent decisions, or even to the MOEA's practice in such cases being held to be incorrect, so that its appeal decisions are overturned on the grounds of procedural flaws. Such developments will be very worth watching.