IP Court considers representation of foreign legal persons in trademark proceedings

When a foreign legal person initiates proceedings in Taiwan, fundamental questions of law often arise. How should the representative of the foreign legal person and the scope of such representation be defined? Who has the right to initiate proceedings or exercise power of attorney? The question of whether such issues should be decided in accordance with the Company Act or Civil Code, or with reference to the law in the foreign legal person's home jurisdiction, is crucial in practice.

In a trademark opposition case before the IP Court (Judgment 100, Xing-Shang-Su-20), the plaintiff argued that since the intervenor was a foreign legal person (from the United States) and the signatory of the power of attorney was not that person's legal representative, the signatory had no right to execute the power of attorney on the legal person's behalf. The court decided that such disputes should be decided according to the laws of the legal person's home country by citing the Law on the Application of Laws to Civil Cases Involving Foreign Matters.

The IP Court also pointed out:

"According to Article 10-1 of the Act on the Application of Laws to Civil Cases Involving Foreign Matters, the disposing capability of a person shall be subject to the laws of his or her home country. According to Article 10 of the same Act, the form of a legal act shall be decided by laws applicable to such act; provided, that if the legal act is done in a form stipulated by the lex loci actus, it shall also be valid; where the act is done at different places, the form of the act taken according to any of the lex loci actus shall be deemed valid. As to the question of whether an agent ad litem can legally represent the party of the proceedings, it is a matter of private law and should be decided based on the laws applicable thereto. In consequence, in respect of proceedings initiated by a US-based company in Taiwan, the questions on whether such company enjoys the personality of a legal person and on the organisation, authority, disposing capability and responsibility of the company should be decided based on the Company Law of the USA."

Ruey-Sen Tsai, Lee and Li Attorneys at Law, Taipei