Formal requirements for power of attorney in trademarks proceedings in Poland

Trademark protection is associated with direct legal action whereby the proprietor seeks protection in the jurisdiction where a mark has been infringed. Foreign trademark owners may face difficulties seeking effective powers of attorney in Poland. As a general rule, the scope of a power of attorney is fairly straightforward, as it is only necessary to precisely define the activities to which the attorney is entitled. Problems arise with regard to the documents that must be submitted to prove that the person who granted such powers is entitled to represent the company that they claim to work for.

An attorney filing a power of attorney before the Polish Patent Office or Polish courts must prove that this power has been duly granted. However, in actual practice, in the case of a foreign entity, it might be complicated to define and time consuming to gather the documents that should be presented to the Polish court to prove that this is the case.

The standard and most common document defining the principles of representation and the persons authorised to represent an entity is usually an excerpt from a commercial register. In the vast majority of countries, commercial registers do exist, although the way that they function differs. Some of them allow one to download a document online, while others only provide information via a competent court or office.

As long as the commercial register is kept by a state authority, there is no need to obtain a legalisation of the original excerpt, an extract from such a register or an apostille clause. This is because as a original foreign official document, it is subject to admission to legal circulation in Poland and has the same probative value as a Polish official document. The exception is when the authenticity of the document has been denied by the other party, then it is necessary to legalise such a document or obtain an apostille clause. On the other hand, the copies or the unofficial documents needs legalisation as long as there is an international agreement on waving the legalisation of the documents concluded by Poland.  

If there is no commercial register, authorisation can be confirmed by a foreign notary who is duly authorised by the persons who granted the power of attorney. However, notaries do not have the same status and powers in all countries. Thus, it will not always be possible to draw up a document abroad that meets the requirements for demonstrating the authority of people who signed the power of attorney for the needs of the Polish Patent Office or courts. Most documents drawn up by a notary public operating in common law countries may at best be considered a private document with signatures officially certified by a notary. In the course of confirming the authorisation to a notary in writing, with a signature certified by a notary, it is necessary to describe in what capacity the persons signing the power of attorney are acting for a given entity, and that the power of attorney document has been duly signed in accordance with the principles of representation of a given entity. Such documents shall be dully legalised or apostilled.

There is always a need to obtain a sworn translation of a foreign document into Polish, but this requirement is intuitively followed.

The Polish Patent Office and Polish courts are very strict regarding the power of attorneys and company documents. It is necessary to file these with legalisation or apostille (if the country from which the entity comes recognises the Hague Convention). On occasion the office and the courts will require an apostille clause on official documents, although this is not always the case.

If the document is questioned by the court or other party, it is necessary to submit it with appropriate legalisation or apostille. This may cause problems, especially when it takes place during proceedings, and the party has just few weeks to provide the documents. Obtaining legalised or apostilled documents usually takes some time, and the court may not set sufficient time for this, which usually leads to the suspension of proceedings and even discontinuation. Therefore, it is recommended that parties submit documents with an appropriate apostille.