Industrial and intellectual property, Court of Cassation, I Civ. Sec., Judgment n. 763 of 15/01/2018
Essential lines of the arguments of the Supreme Court of Cassation
ORDINANCE against the sentence of the Court of Appeal of Naples, Section specialized in industrial and intellectual property, n. 1108/13 filed March 18, 2013.
on the appeal registered under no. 18332/2013 R.G. proposed by … … S.P.A., in the person of the President p.t. …., And … … S.P.A., represented by ….., represented and defended by …
– applicants –
against ……… S.R.L., in the person of the sole administrator p.t …
– counter-current –
Heard the report held in the council chamber of 11 July 2017 by the Councilor ….
CAUSE FACTS
1. With a writ of summons served on 1 December 2002, the ….. Italy S.p.a. and the ….. S.p.a. they convicted the … .rl, to hear that the sale, distribution and advertising of the engines ….. and generators … … constituted acts of unfair competition, with order of cessation of illicit activity and order the defendant to pay damages.
It constituted the … and resisted the request, by way of a counterclaim requesting the revocation of the order issued on November 16, 2002, with which the sale of the products indicated by the plaintiffs was ordered, and the conviction of the latter for the compensation of the damage.
1.1. By sentence of 2 July 2011, the Court of Campobasso rejected the main application and declared that the counterclaim was inadmissible.
2. The appeal brought by the …….. before the Court of Appeal of Naples, Section specialized in industrial and intellectual property, was declared inadmissible by judgment of 18 March 2013.
On the basis of the decision, the Court found that, as regards a sentence pronounced by the Court of Campobasso in a judgment registered in the month of December 2002, the appeal was not subjected to the discipline dictated by the legislative decree of 27 June 2003 , n. 168, and should therefore have been proposed before the Court of Appeal of Campobasso.
3. Against the aforementioned sentence, the ….. appealed to the Supreme Court, divided into two motifs, also illustrated with memory. The … has resisted with a counter-appeal.
REASONS FOR THE DECISION
1. With the first ground of appeal, the appellants denounce the violation or the false application of the art. 245 of Legislative Decree 10 February 2005, n. 30, as amended by art. 19 of the law of 23 July 2009, n. 99, arguing that, in excluding its jurisdiction, the District Court did not consider that the appeal, proposed after the entry into force of the code of industrial property, had as its object a sentence issued in the context of a judgment established before of the establishment of the specialized Sections, and in which no decision had been made on the competence.
Given that the case concerned the completion of acts of unfair competition interfering with their right to the “… ..” mark, they affirm the irrelevance of the institution of the Section specialized in the field of enterprise of the Court of Appeal of Campobasso, as subsequent to the proposition of the appeal.
2. By the second plea, the appellants allege the violation or misapplication of Articles 132 cod. proc. civ. and 118 disp. att. cod. proc. civ., noting that the reasoning of the judgment under appeal does not allow the reconstruction of the logic-legal process by which the District Court reached the declaration of inadmissibility of the appeal.
3. The appeal is inadmissible.
In declaring the appeal inadmissible, since it was brought before a court other than the functionally competent judge, the judgment appealed led to an orientation of the jurisprudence of legitimacy, rather widespread until very recent times, which excluded, in the aforementioned hypothesis, the operation both of the discipline dictated by the art. 38 cod. proc. civ. in terms of detection of incompetence that of that dictated by art. 50 cod. proc. civ., on the c.d. translatio iudicii.
According to this law, in our legal system the identification of the judicial office entitled to be invested in the appeal does not give rise to a question of jurisdiction, in the sense provided for in Chapter I of Title I of Book I of the Code of Civil Procedure, how much, if it is true that in principle the discipline of the identification of the judge of the appeal responds, on the functional level, to an aim similar to that accomplished by the discipline of individuation of the judge competent in first instance, the one and the another, according to rules that establish before which judge a certain type of civil trial should take place, by reason of the degree, it is also true, however, that between the two phenomena there is no identity of ratio, such as to justify the extension. analogically, even partially, to the first of application aspects related to the second.
By virtue of this statement, the applicability of the aforementioned provisions had been excluded:
a) both in the case in which, as in the present case, the appeal had been brought before a court territorially not corresponding to that indicated by the law,
b) is in case that, even if respected the territorial rule, the appeal had been proposed before a judge of a different type from that identified by the law,
c) either in the case of an appeal brought before a court other than the legitimate one, but belonging to the same type of judicial office,
d) finally, in the case of an appeal brought to court and in the vertical division of the organization of the civil appeals process, it was not superior to that which had pronounced the sentence or even was placed in a lower position (see Cass., Section VI, 2 / 11/2015, No. 22321, Cass., Section I, 7/12/2011, No. 26375, Cass., Section III, 10/02/2005, No. 2709).
The aforementioned orientation, however, was opposed by another, according to which the appeal filed before a territorially incompetent judge did not constitute a hypothesis of inadmissibility of the appeal pursuant to art. 358 cod. proc. civ., but it was worth to establish a valid procedural relationship that could continue before the competent court, since it is possible, through the re-employment mechanism, to transfer and continue the original procedural report before the body declared competent (Cass., Section VI, 9 / 06/2015, No. 11969, Cass., Section III, 22/08/2007, No. 17847, Cass., Labor Section, 2/07/2004, No. 12155).
Called to settle the law, the United Sections of this Court, with a recent ruling, have adhered to this last address, enunciating the principle of law according to which the appeal brought before a court other than that indicated by the art . 341 cod. proc. civ. does not determine the inadmissibility of the appeal, but is suitable to establish a valid procedural relationship, likely to continue before the competent court through the mechanism of translatio iudicii both in the hypothesis of appeal brought before a court territorially not corresponding to that indicated by law, both in the hypothesis of appeal brought before a judge of a different grade from the one before which the burden should have been proposed.
Given that the rule that dictates the criteria for the identification of the judge entitled to decide on the appeal provides a sui generis jurisdiction, which appears to suit the qualification of functional jurisdiction, it was noted that the defect resulting from the identification of a judge appeal different from that determined pursuant to art. 341 cod. proc. civ. it is not among the cases for which the sanction of the inadmissibility of the encumbrance is expressly provided, nor between those in which the power of appeal is not configurable, as it does not affect the existence of the power of appeal, but only on its legitimate exercise, with the consequence that the applicability of the discipline of jurisdiction can not be excluded, which, besides being placed among the general provisions dictated by the title I of book I of the code of procedure, makes no distinction between first and second degree.
It has been added that the applicability of the principle of translatio iudicii, in the case of both incompetence per territory and in the event of incompetence by grade of the appeal judge, is consistent with the principle of effectiveness of the judicial protection established by art. 24 of the Constitution, which also includes the right to obtain a decision of merit (see Cass., Section Un., 14/09/2016, No. 18121).
As a result of this ruling, the principle, referred to in the contested judgment, that the erroneous identification of the judge entitled to decide on the appeal does not arise as a question of competence, but concerns the assessment of the conditions of proposability, can not be further applied. o admissibility of the encumbrance, which must therefore be declared precluded if presented to a court other than the one identified by art. 341 cod. proc. civ.
The integral reference to the discipline dictated by chapter I of title I of book I of the ritual code, deriving from the qualification of the aforementioned legitimation as a functional competence, implies, besides the considered possibility of the translatio iudicii, also the applicability of the principle established by ‘art. 42 cod. proc. civ., according to which the measure that has pronounced exclusively on the competence, without deciding the merit of the case, can be challenged only with the regulation of competence.
The case in question does not present, however, significant differences with respect to the hypothesis, peacefully subjected to the discipline dictated by art. 42 cit., In which the appeal judgment, concerning the appeal of a first instance judgment that has also ruled on the merit, has been defined in a ruling that has exclusively solved a question of jurisdiction (cf. Cass., Section I, 9/10/2015, No. 20304, Cass., Section III, 21/05/2010, No. 12455, 5/03/2009, No. 5391); for this purpose, no relevance can be given to the fact that, in this case, the judgment was defined by sentence, rather than by order, since the application of art. 42 is conditioned not by the form but by the substance of the provision, the content of which, as consisting in the mere resolution of the preliminary question concerning the identification of the judge entitled to decide, justifies the use of simplified and accelerated procedures for appeal against the decision.
The contestability of the sentence of appeal exclusively with the regulation of competence, precluding the proposition of the appeal for cassation, implies in this case the inadmissibility of the appeal, it is not possible to convert the ordinary appeal in the application for a regulation of competence, in default of the proof, against the appellant, of the notification of the appeal within the period referred to in art. 47 cod. proc. civ., in the absence of the notification of the contested judgment, by the communication of the same by the Registry (see Cassation, Section VI, 7 / 05/2015, No. 9268; Cass., Section I, 11 / 09/2007, No. 19039, Cass., Section III, 20 / 03/2006, No. 6105).
4. The traceability of the decision to the change occurred in the jurisprudence of legitimacy in relation to the matter dealt with justifies the full compensation of the court costs between the parties.
The appeal is declared inadmissible. It fully compensates the court costs.
Source Supreme Court of Cassation
