The Commercial Cassation Court Within the Supreme Court - on the Specifics of Reviewing a Court Decision on Newly Discovered Circumstances

On June 30, 2022, the panel of judges of the Commercial Cassation Court within the Supreme Court considered case No. 910/13908/17 on the claim of Farmak JSC against state enterprise "The Ukrainian Institute of Intellectual Property" and Darnytsia Pharmaceutical Firm PJSC regarding the invalidation of a certificate for a mark of goods and services "Korvalol-Darnytsia".

The decision of the Commercial Court of the city of Kyiv dated July 11, 2018, which entered into force, rejected the claim.

In July 2019, Farmak JSC applied to the local commercial court with a request to review this court decision based on newly discovered circumstances. As a newly discovered circumstance, the applicant referred to the annulment of the judgment in case No. 910/17792/17 (on the invalidation of the decision to recognize the mark "Корвалол Corvalolum" as well-known in Ukraine under the name JSC "Farmak" for goods of class 05 of the Nice Classification as of December 1, 2002), which became the basis for making a decision in this case, which is subject to revision under newly discovered circumstances.

The case on the application of Farmak JSC on the review of the judgment of the Commercial Court of Kyiv dated July 11, 2018, due to newly discovered circumstances, was repeatedly considered by commercial courts.

As a result of the new review of the case, the resolution of the Northern Commercial Court of Appeal dated December 21, 2021 cancelled the decision of the Commercial Court of Kyiv dated May 14, 2020 (which refused to grant JSC Farmak's application to review the decision based on newly discovered circumstances); the application of Farmak JSC to review the decision of the Commercial Court of the city of Kyiv dated July 11, 2018, based on newly discovered circumstances, was granted; the decision of the Commercial Court of the city of Kyiv dated July 11, 2018 was cancelled and a new decision was made - on the satisfaction of the claim.

The Commercial Cassation Court within the Supreme Court satisfied the cassation appeal of Darnytsia Pharmaceutical Firm PJSC, cancelled the decision of the Northern Commercial Court of Appeal dated December 21, 2021, and upheld the ruling of the Commercial Court of the city of Kyiv dated May 14, 2020.

The Supreme Court indicated that the local commercial court reached a legitimate conclusion about the refusal to grant the application for review of the court decision based on the newly discovered circumstances, leaving in force the decision of the Commercial Court of the city of Kyiv dated July 11, 2018.

The Supreme Court drew attention to the fact that the specifics of revising a court decision on newly discovered circumstances did not provide for a reassessment of all the evidence in the case, a re-examination of all the circumstances of the case, as well as verification of the validity of all the conclusions set forth in the court decision, for the revision of which an application had been filed. The court must review the judgment only within the limits of the discovered circumstances, checking whether or not there are grounds for concluding that taking such circumstances into account would be of decisive importance in resolving the dispute.

The court took into account that the principle of legal (judicial) certainty is considered one of the elements of due process in the context of paragraph 1 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights has repeatedly pointed out the importance of ensuring the principle of legal certainty as an element of the rule of law, which, among other things, requires that the final decision taken by the courts cannot be set aside (ECtHR judgment of November 28, 1999 in the case of Brumărescu v. Romania, application No. 28342/95). This principle establishes that no party has the right to raise the issue of reviewing a final judgment that has entered into force only for a new trial and a new decision on the merits. The review of the judgment should not be a disguised appeal procedure, and the mere existence of two positions on the way to resolve the dispute is not a reason for retrial. Deviations from this principle are permissible only in exceptional circumstances (paragraphs 51-52 of the ECtHR decision of July 24, 2003 in the case of Ryabykh v. Russia, application No. 52854/99; ECtHR ruling on the admissibility of application No. 62608/00 AgroTechService v. Ukraine; paragraphs 42-44 of the ECtHR decision of June 9, 2011 in the case of Zheltyakov v. Ukraine, application No. 4994/04).

The text of the Resolution of the Commercial Cassation Court within the Supreme Court of June 30, 2022, in case No. 910/13908/17 can be found at the following link - https://reyestr.court.gov.ua/Review/105178958.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - lpd.court.gov.ua/login.