Polish IP & IT law – copyright trademark computer internet telecomm

Trade mark law, case

May 17th, 2012, Tomasz Rychlicki

On 26 October 2009, the Polish Patent Office registered the figurative trade mark R-221206 for goods in Classes 16, 35 and 44. This sign was applied for Fundacja na Rzecz Osób Niewidomych i Niepełnosprawnych “POMÓŻ I TY” z Gdyni (the Foundation for the Benefit of the Blind of Disabled People “YOU CAN HELP TOO”).

R-221206

European Union represented by the Commission filed a notice of opposition to the decision of the Patent Office on the grant of a right of protection, claiming that the trade mark incorporated symbols of the EU flag. The Adjudicative Board of the PPO in its decision of 11 May 2012 case no. Sp. 468/11 dismissed the request anddecided that the questioned trade mark is quite distinct from the heraldic of the EU flag, with no resemblance to it.

This decision is not final yet. The EU may file a complaint to the Voivodeship Administrative Court. See also “Trade mark law, case Sp. 158/08” and “Trade mark law, case II GSK 555/09“.

Internet domains, case III CSK 120/11

May 15th, 2012, Tomasz Rychlicki

MEDianus sp. z o.o. and Medianus Agencja Reklamowa sp. z o.o. are seated in the same city, at a location nearby. The first one uses medianus.net domain name and the second medianus.pl. The first company was entered in the Register of Business Entities in the National Court Register (KRS) as MEDianus in June 2003 r. The second one was entered in 2009. MEDianus sp. z o.o. filed a complaint, to prohibit the other company to use the name “medianus” in the company name and as a domain name, based on the provisions of Article 3 and 5 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), published in Journal of Laws (Dziennik Ustaw) No. 47, item 211, with subsequent amendments. MEDianus sp. z o.o. argued the the use of the same company name caused many confusions with delivery of post or invoices.

R-200943

The District Court dismissed all claims. However, the Appellate Court in Kraków agreed with MEDianus sp. z o.o. appeal and ordered Medianus Agencja Reklamowa to change its company name and website and to publish an apology in two national newspapers.

Z-360648

The Polish Supreme Court in its judgment of 9 December 2011 case file III CSK 120/11 dismissed the complaint filed by Medianus Agencja Reklamowa. The Court held that in order to apply the provisions of Article 5 of the CUC, both companies have to be in competitive relationship. This situation happens when there is a risk of confusion with regard to the identity of entrepreneurs. The Court also confirmed that the so-called cybersquatting is an unnamed delict (tort) under the Polish law on combating unfair competition.

See also “Polish case law on domain names“.

Access to public information, case I OSK 2265/11

May 11th, 2012, Tomasz Rychlicki

A Polish company requested the Ministry of the Interior and Administration (MIA), and Director of the Centre of Information of MIA, to disclose all legal opinions prepared by the Polish Information Processing Society that concerned IT systems created by the Ministry. The Director provided all the requested documents, however the Ministry only asked the Company to clarify the request in the letter sent on October 2009. The Company filed a complaint for failure to act, claiming administrative inaction in its case. The Ministry also argued that the requested information cannot be disclosed because such expert opinions are copyrighted materials, and as such, are not deemed as public information.

The Voivodeship Administrative Court in Warsaw in its judgment of 4 February 2010 case file II SAB/Wa 155/09 agreed with the Company and ordered the MIA to disclose requested information. The Court ruled that such expertises are public information, so they should be disclosed, unless they contain secret information protected by law. The Minister of MIA filed a cassation complaint. The Supreme Administrative Court in its judgment of 3 August 2010 case file I OSK 757/10 repealed the contested judgment and returned it to the VAC for further reconsideration. However, the SAC only discussed and held that the VAC did not examine whether there was administrative inaction of the MIA. The Court did not examine the allegation that there was a breach of regulations of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments. The Voivodeship Administrative Court in Warsaw in its judgment of 8 September 2011 case file II SAB/Wa 174/11 was bound by the interpretation of the SAC, and decided that there was administrative inaction. The Minister of the Interior and Administration, once again filed a cassation complaint.

The Supreme Administrative Court in its judgment of 7 March 2012 case file I OSK 2265/11 dismissed it. The SAC held that if the Minister found that it had the requested information, while it also concluded that there are obstacles to the disclose because of the circumstances set out in Article 5 of the API, or other provisions of specific laws, it was obliged to initiate ex officio proceedings on the refusal to disclose information. The refusal should be issued as an administrative decision only. The lack of such a decision was deemed as administrative inaction, subject to a complaint. The letter sent by the Minister on October 2009 was clearly not an administrative decision. The SAC reminded that the administrative decision should obligatory contain: the name of public authority, date, identity of the party or parties, the legal basis on which the decision was issued, the conclusion and findings, factual and legal grounds, instruction, whether and how to file an appeal against the decision, the signature with the name, surname and position of the person authorized to issue a given decision. Although the letter was signed and affixed with the seal by the Deputy Director of Administration and Finance Office of the MIA, is was not mentioned that the Director acted under the authority of the Ministry. The letter did not contain a ruling on the request of the Company, but on the contrary – the Director explicitly stated that the request was not recognized in accordance with that Act on access to public information. The Letter had no form of a decision, it did not include the instruction, whether and how to file an appeal against it. The Court decided that this letter was purely information message sent on paper. The Polish legislature did not formulate any legal definition of “access to public information”, or the very concept of public information, both in the Polish act on access to public information or in any other legal act. However, Article 1 of the API ab initio provides that each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act. According to legal commentators, a public matter is the activity of both public authorities, economic and professional self-government bodies that exercise tasks of official authority and the management of public property. A specific individual case of a person, especially of a private nature, is not deemed as public matters. The access to administrative files falls Within the catalog of public information. Public information is therefore the content of any document relating to public authority. These range from documents produced by government bodies, as well as those used in the execution of the tasks provided for by law, even if they do not come directly from the authorities. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 30 October 2002 case file II SA 1956/02, the Voivodeship Administrative Court in Opole in its judgment of 17 January 2008 case file II SAB/Op 20/07, the Voivodeship Administrative Court in Warsaw in its judgmet of 16 July 2008 case file II SA/Wa 721/08, the Voivodeship Administrative Court in Warsaw in its judgmet of 26 June 2008 case file II SA/Wa 111/08. The criterion for determining the disclosure and availability of the documents under the API is not their authorship, but the opinion that they are used to carry out public duties, and were prepared at the request of public authorities, when at the same time, their content and does not violate the privacy of an individual or trade secrets of business. It is not about the disposal of copyright, but about access to the content of the document that was created on behalf of the public authority to carry out public duties. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 15 July 2011 case file I OSK 667/11, by the Supreme Administrative Court in its judgment of 7 December 2010 case file I OSK 1774/10, by the Supreme Administrative Court in its judgment of 18 September 2008 case file I OSK 315/08, by the Supreme Administrative Court in its judgment of 9 February 2007 case file I OSK 517/06. Not all opinions or expertise, that were created by a public authority or on behalf of public authorities, are public information. The classification of legal opinion in documents that are available under the API is determined by the purpose for which it was prepared. A legal opinion prepared for the public authority on the merits of initiating future proceedings in a particular civil case does not constitute public information for the purposes of Article 1 of the API. It was confirmed by the Supreme Administrative Court in its judgment of 16 June 2009 case file I OSK 89/09. An expertise that specifically relate to a given legislative proposal for which the legislative process continues, are deemed as public information. These documents relate to the facts, of such, is the legislative proposal submitted to the competent authority in the legislative procedure. It was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. If a disclosure of public information threatens the common or individual interests, there is the possibility to restrict the access to such information by refusing its disclousure by an administrative decision that should be based on the provisions of Article 16 of the API. The expertise prepared by the Polish Information Processing Society for the Ministry, associated with the formation by that authority of systems, and the preparation of examinations for persons applying for a certificate of qualification for the controllers and communication systems, satisfy the conditions of public information, because they concern the implementation of tasks by the public authority. If the the expertise concerned computerization and informatization of the public sphere and involved the expenditure of public funds, therefore it is public information, because it refers to the public affairs, which is the issue of computer software/programs in the implementation of public tasks, and how they are used and implemented, the implementation and impact of these tasks and information on public property, including property of the State Treasury.

There was also a specific issue of the expropriation of copyright for public purpose. Article 1 of the Polish Act on Authors Rights and Neighbouring Rights provides that the subject of copyright should be any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression (work). Opinions and expertise made by qualified persons or entities meet the statutory definition. According to Article 4 of the ARNR, the copyright should not apply to legislative acts and their official drafts, official documents, materials, logos and symbols. Expertises commissioned by the Ministry, are official documents within the meaning of the Article 4(2) of the ARNR. They are used as a servant in decision-making process of the executive authority and are not the subject of copyright. The Polish Supreme Court and the Supreme Administrative Court agree that the official documents are materials that come from the office or other state institution or concerned official matters, or was the result of application of the official proceedings. As it was decided by the Supreme Court in its judgment of 26 September 2001 case file IV CKN 458/00, and by the Supreme Administrative Court in its judgment of 19 February 1997 case file I SA/Kr 1062/96. The effectiveness of social control and supervision over the information used on completion of assigned tasks of public authority correspond with such understanding of the relationship between the provisions of Article 1 of the API and Article of the ARNR. Such opinion was confirmed by the Supreme Administrative Court in its judgment of 27 January 2012 case file I OSK 2130/11. Hence, the definition of an official document, provided in Article 6(2) of the API does not provide a basis for restricting access to public information, defined in the Article 1(1) of the API, including the catalog of examples contained in Article 6(1) of the API.

Access to public information, case I OSK 1550/11

May 7th, 2012, Tomasz Rychlicki

On 22 November 2010, Bogusław Kler, a Polish patent and trade mark attorney, requested the President of the Polish Patent Office to disclose public information concerning the word trade mark PRINCE POLO R-148617, in order to know, whether during the examination, the trade mark POLO R-69429, or other marks containing this word were taken into account, and in particular, if the expert who was proceeding and examining the trade mark application, noted and listed any signs with the word “polo” in the examination card of the trade mark PRINCE POLO R-148617. In addition, Mr Kler requested for information on whether in a possible conflict between “Prince Polo” and the earlier “POLO” signs, the examiner considered any settlement actions of the owners of such trade marks, indicating that he is not requesting the full texts of documents, but seeking to confirm whether such documents if any, were submitted to the trade mark file and they were used in the assessment for the trade mark PRINCE POLO.

The President of the PPO expressed the opinion that the examination card of the trade mark PRINCE POLO R-148617 is not deemed as public information, because it is not directed the parties of the proceedings, and therefore it cannot be disclosed. With regard to information on materials concerning possible settlement between the trademark owners, the President explained that such information can be obtained by directly asking the entitled entities. At the same time, the President pointed out that decisions on the granting of exclusive rights belong to independent experts, and the requested filed by Mr Kler can be read as an unfounded and unjustifiable attempt to control of examinations conducted by experts and the procedures for the granting of exclusive rights. The President argued that such control process of the legality of decisions undertaken by the Polish Patent Office falls within the competence of administrative courts. The method of preparing and filing of the examination card of a trade mark is not regulated in any legislation being in force. Information to be included in it depends on the expert. The examination card is somehow a reflection of thinking of a person who was handling a given case.

Bogusław Kler filed a complaint for failure to act (administrative inaction). Mr Kler argued that the President of the PPO did not consider his request or did not issue a refusal decision.

The Voivodeship Administrative Court in its judgment of 13 May 2011 case file II SAB/Wa 88/11 dismissed the complaint. The VAC held that information requested by Mr Kler is not public, in particular, these are not public data. The Court held that the examination card is not an official document since it does not contain a declaration of will/intent or knowledge of a public official. Based on the card, it is not possible to unambiguously determine conditions, that were followed by the authority granting the right of protection for a trade mark. The card is a working internal document of the PPO, which provides information of operational activities aimed at a comprehensive assessment and examination of the validity and legitimacy for granting the protection of the sign applied for. Mr Kler filed a cassation complaint.

The Supreme Administrative Court in its judgment of 1 December 2011 case file I OSK 1550/11 repealed the contested judgment and returned it to the VAC for further reconsideration. The SAC held that according the Constitution of the Republic of Poland, a citizen should have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right should also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury. Limitations upon the right of information may be imposed by the Act solely to protect freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State. The principle of the “right to information” provided in the Constitution sets basic rules of interpretation of this right. It is a constitutional right, therefore, the law defining the procedures for access to information should be interpreted broadly, and any exceptions to this right should be construed and interpreted narrowly. This implies the use in relation to these acts of interpretation, which favor expanding rather than narrowing the obligation to disclose information. The enumeration, what is deemed as public information, is provided in the Polish Act on Access to Public Information, however this enumeration includes exemplary situations, and it does not cover all cases in which information is disclosed. The Court noted that public information is each information or data that was created or referred to the widely defined public authorities, or was created or referred to other entities performing public functions in the execution of tasks of public authority. The Supreme Administrative Court shared the view that all files of entire administrative proceedings conducted by a public authority, constitutes public information – including both documents created and held by the authority in connection with a particular case. Therefore, the Court held that, in principle, all that is in the file of the proceedings, regardless of whether it will be a public document or private, should be disclosed. It does not matter whether the document in the file is an “internal” or “working”. Even giving up the assumption that the whole proceedings constitute public information, it cannot be excluded that given documents from these files have such nature. In each case, every request for disclosure of public information requires a detailed analysis. Only as a result of such analysis, the authority should decide whether the requested information is public, followed by what standards govern the procedure of its disclosure.

Trade mark law, case VI SA/Wa 611/11

April 30th, 2012, Tomasz Rychlicki

The Polish Patent Office partially refused to grant the right of protection for the word-figurative trade mark moja historia Z-338905. This sign was applied for PHOENIX PRESS Sp. z o.o. Sp.k. from Wrocław for goods and services in Class 09, 16, 35, 39, 41 and 42. The PPO based its refusal in Class 09, 16 and 41 on the earlier registration of the word-figurative trade mark Moja historia R-187793 owned by WYDAWNICTWO ERA Sp. z o.o. from Straszyn. PHOENIX only agreed that both companies are publishers, but the signs are meant for other goods and are directed to another recipients. Phoenix is a press publisher whose clients are adult women and WYDAWNICTWO ERA is a publisher of school history textbooks (mainly the history of Poland), which customers are students in primary schools.

R-187793

The PPO decided that there exists similarity of signs and goods and services which may lead to consumers confiusion. PHOENIX filed a complaint against this decision. The Company argued inter alia that the PPO could grant the right of protection and it would not deprive WYDAWNICTWO ERA of protection provided for instance in the Polish Act on Combating of unfair competition, if PHOENIX’s trade mark would actually threaten the existence and functions of the trade mark owned by ERA.

Z-338905

The Voivodeship Administrative Court in Warsaw in its judgment of 8 June 2011 case file VI SA/Wa 611/11 dismissed the complaint. The Court ruled that regulations on combating unfair competition are provided in a separate act, and it is justified by both the construction of the Polish legal system and due to the method of regulation. The law on combating unfair competition does not create absolute rights, but only the system of legal claims that provides protection in the event of unwanted and objectionable market behavior and actions (unfair competition delicts or torts), which is a different approach than those adopted in the Polish Industrial Property Law, which are based on the granting of absolute rights (monopolies) by an administrative decision.

Personal interest, case II C 626/11

April 27th, 2012, Tomasz Rychlicki

In 2007, for about 6 months, the Polish Central Anti-corruption Bureau collected telecommunications data, including billings and location data from BTS, of a Polish journalist Bogdan Wróblewski. Mr Wróblewski sued the Polish State Treasury which according to the Polish law represents the Polish state in certain legal aspects..

The District Court in Warsaw in its judgment of 26 April 2012 case file II C 626/11 has confirmed that the Central Anti-corruption Bureau violated personal interests of a journalist by collecting his telecommunications data. The Court pointed out that privacy is a fundamental human right and its breach must be justified and proportionate. The permission is limited “objectively” to offenses of corruption and “qualitatively” – its condition should be determined by the fact that there are not available less invasive means of control which could be useful. The process of receiving of telecommunications data must take into account these limitations each time it is initiated.

Trade mark law, case VI SA/Wa 1203/11

April 24th, 2012, Tomasz Rychlicki

VINEX PRESLAV from Bulgaria requested the Polish Patent Office to decide on the lapse of the right of protection for the trade mark MADARA R-97447 owned by Dimyat Polska Sp. z o.o. Earlier, VINEX PRESLAV applied to the PPO to recognise on the territory of the Republic of Poland of the protection for its international trade mark MADARA IR-0929344. In the preliminary refusal sent to the WIPO, the PPO informed that the trade mark MADARA R-97447 is an obstacle to recognise the protection of the trade mark MADARA IR-0929344 on the Polish territory. VINEX argued that the disputed sign has never been used in Poland in relation to the goods covered by the registration, namely goods from Class 33 such as beverages, wine, spirits, brandies and cognacs. Dimyat claimed that it has acquired the right of protection in 1998, but because of “unexplained delay”, the entry in the register of trade marks was made in 2002. The company had to find a licensee, and the PPO by its decision of March 2005, has made an entry of the licensee into the register. However, under the decision of April 2006, the licensee has been removed from the register. The “confusion” around the entry of a licensee undermined Dimyat’s belief and faith whether the company will be able to exercise that right at all. The PPO decided on the lapse of the right of protection.

IR-0929344

Dimyat Polska filed a complaint against this decision. The company argued that there existed serious reasons of non-use. Dimyat became a legal successor of the trade mark MADARA R-97447, however this right was obtained after several years of court battles which finally ended in 2002, and the PPO was aware of this legal disputes. Dimyat claimed that the objective circumstances relating to the acquisition of the trade mark (the acquisition of a company in liquidation), objective circumstances preventing the transfer of its right of protection (the court proceedings in order to recognize the acquisition of a trade agreement to be effective), the objective circumstances relating to the license (all the PPO actions that were associated with the deletion of the license agreement and the appeals) significantly prevented Dimyat from the use of the disputed trade mark.

The Voivodeship Administrative Court in Warsaw in its judgment of 14 October 2011 case file VI SA/Wa 1203/11 reversed the contested decision, ruled it unenforceable, and returned the case to the PPO for reconsideration. The Court held that it is the responsibility of the PPO, to examine the request for the lapse of a trade mark in the light of the existence of valid and serious reasons of non-use, if such an argument is raised by the owner. The Court noted that the Polish Industrial Property Law uses the term “serious reasons” but does not provide explanation of its characteristics, or even a list of examples. The case-law established that these circumstances are all the events and situations, which exclude allegations of blameworthy conduct of the holder of the trade mark registration. These events include primarily those that bear the characteristics of force majeure or other external circumstances impossible to foresee and to prevent them, as well as factual and legal obstacles that are independent from the will of the owner.

Trade mark law, case Sp. 587/09

April 19th, 2012, Tomasz Rychlicki

On November 2006, the Polish Patent Office granted the right of protection for the word-figurative trade mark EC R-190902 to PPH EVELINE COSMETICS Piotr Kasprzycki, for goods in Class 03 such as skin care and beauty products for women, men, children and teens, perfumes, washing, cleaning, scouring and bleaching preparations, tissues, cotton wool, cotton buds and sticks for cosmetic purposes, and in other goods in classes 05, 16, 21, 42 and 44.

R-190902

Chanel SARL filed a notice of opposition. The company argued that the trade mark EC R-190902 is confusingly similar to many of Chanel’s trade marks, such as CHANEL R-33924 that was registered with the earlier priority of 2 September 1947 for goods in Class 03 such as soaps and toilet preparations, or the figurative trade mark R-57346 that was registered with the priority of 24 March 1979 for goods in Class 03. Chanel also claimed that the right of protection for the trade mark EC should not be granted because it brought unfair advantage to EVELINE COSMETICS.

R-143536

The Adjudicative Board of the Polish Patent Office in its decision of 15 March 2012 case no. Sp. 587/09 invalidated the right of protection. The decision is not final yet. EVELINE COSMETICS may file a complaint to the Voivodeship Administrative Court in Warsaw.

Trade mark law, case VI SA/Wa 1530/11

April 16th, 2012, Tomasz Rychlicki

On May 2007, the Polish Patent Office granted the right of protection for the word trade mark Vondutch R-190394, that was applied for by “SEREN TEKSTIL” Sp. z o.o. for goods in Class 25 and Class 35. The Irish company V D Europe from Dublin filed a notice of opposition to the decision of the Patent Office on the grant of a right of protection. V D Europe argued that it is the owner of the CTM VON DUTCH no. 000336495, that was registered with the earlier priority of 8 August 1996 for good in Class 25. On 20 January 2010, the patent attorney representing V D Europe informed the PPO that the company Royer Brands International Sàrl is the new owner of the CTM VON DUTCH. The representative provided proper evidence of total transfer of ownership, and the POA from the new owner.

CTM 000336495

The Adjudicative Board of the Polish Patent Office in its decision of 3 February 2010 case no. Sp. 499/08 dismissed the opposition, and decided that Royer Brands International has no rights to conduct proceedings that were started by another company. The PPO ruled that Royer Brands International is not related structurally, financially, or linked in any legal way with V D EUrope. The PPO decided that the request was unfounded, because the owner sold its rights to a trade mark. Royer Brands International filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 23 November 2011 case file VI SA/Wa 1530/11 repealed the contested decision, ruled it unenforceable, and returned the case to the PPO for further reconsideration. The Court found that Royer Brands International has confirmed all the declarations of will and actions that were taken during the opposition proceedings by every person acting on the basis of previously submitted POA. In the opinion of the Court, the wording of Article 162 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments, was deciding in the present case.

Article 162
1. The right of protection for a trade mark may be assigned or be subject to succession. The provisions of Article 67(2) and (3) shall apply accordingly.

1¹. The right of protection for a trade mark may be transferred to the organizations referred to in Articles 136 and 137 as a collective trade mark or collective guarantee trade mark respectively or to a number of entities as a collective right of protection.

1². Transfer of the right of protection, referred to in paragraph (1¹) may be effected only with the consent of the parties who enjoy that right.

1³. Entry in the trade mark register of the transfer of the right of protection, referred to in paragraph (1¹) after the regulations governing use of the trade mark, referred to in Article 122 (2), Article 136(2) or Article 137(1) have been submitted.

1⁴. A collective right of protection may be transferred to a single party as a right of protection for a trade mark.

2. (deleted)

3. The right of protection for a collective trade mark may be assigned as a joint right of protection to the undertakings grouped in the organisation referred to in Article 136. The contract of assignment shall determine the rules governing the use of such trade mark to the extent to which it is practised in respect of the regulations referred to in Article 122(2).

3¹. A collective right of protection may be transferred to the organizations referred to in Articles 136 and 137 as a collective trade mark or a collective guarantee mark. A contract for the transfer of the right should specify the rules governing use of that trade mark to the extent as it is provided for in respect of the regulations referred to in Article 136(2) and Article 137(1) respectively.

4. The right of protection for a trade mark may also be assigned in respect of certain goods for which the right of protection has been granted, if the goods for which the trade mark remains registered on behalf of the vendor are not of the same kind. Once assigned, the right in question shall be dealt with as independent of the right enjoyed by the vendor.

5. The contract of assignment of a share in the joint right of protection shall be valid subject to the consent given by all of the joint owners.

6. Paragraphs (1), (3) to (5) shall apply accordingly to the right deriving from an application filed with the Patent Office, for which no right of protection has yet been granted.

This provision introduces a general principle of transferability of the right of protection for a trade mark. The disposal of rights of protection may be primarily based on a contract of sale, exchange, or a contract of donation. However, it should be also stressed that the agreement transferring the right of protection shall be in writing, in order to be valid. Also, the relevant provisions of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments, were applicable in this case.

Article 30.
§ 1. Legal capacity and the capacity to enter into legal transactions shall be determined according to the provisions of civil law, unless specific provisions provide otherwise.

§ 2. Natural persons with no capacity to enter into legal transactions shall act through their legal representatives.

§ 3. Parties not being natural persons shall act through their legal or statutory representatives.

§ 4. In matters concerning transferable or hereditable rights, in case of a transfer of the right or death of the party during the pendency of the proceedings the legal successors of the party shall join the proceedings in lieu of the party.

In the opinion of the Court, Royer Brands International, under the law being in force in the Republic of Poland, has not only become the legal successor to the CTM VON DUTCH, which was the results of the valid contract of transfer of the Community trade mark, that was accepted and confirmed by OHIM in 2009, but is also the legal successors in the opposition proceedings. This means that the PPO has committed a violation of the provisions of substantive law (regulations included in Article 162 of the IPL) through their incorrect interpretation, and consequently its improper application in the case. Furthermore, the Court ordered the PPO a careful analysis of the substantive merits of the opposition, including the similarity of the signs.

E-signature law, case II SAB/Łd 35/12

April 11th, 2012, Tomasz Rychlicki

A Polish citizen filed a complaint to the Voivodeship Administrative Court via e-mail, and signed it with the qualified electronic signature. The Court called him to sign the complaint manually, within 7 days under pain of rejection of the complaint. The applicant argued that he already signed it.

The Voivodeship Administrative Court in Łódź in its order of 13 March 2012 case file II SAB/Łd 35/12 rejected the complaint. The Court held that the complaint must meet two kinds of requirements. First of all, the complaint must meet all the requirements provided for the letter in court proceedings, and also it has to include an indication of the contested decision, order, or any other act or activity, the indication of an authority or body whose action or inaction is a subjetct of the complaint, the explanation of violation of law or legal interest. As each letter, the complaint should therefore be signed by the party or its legal representative or attorney, according to the provisions of Article 46 § 1 point 4 of the Polish Act on Proceedings Before Administrative Courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi of 30 August 2002), published in Journal Of Laws (Dziennik Ustaw) No 153, item 1270 with subsequent amendments. According to the Court, for the effectiveness of the electronically signed letter it has to be signed manually by the party. Therefore, the signature of the applicant’s letter must be submitted in person, i.e, it has to be a manual sign of a specific person to allow for its identification. An exception to the above mentioned rule, is a provision stating that a letter which can not be signed by a party in person, should be signed by a person authorized by the party. Such a person has to explain the reasons why the party itself did not signed the letter. Failure to sign the complaint within the prescribed period of time means that the applicant did not remove its defects in form, which results in rejection of the complaint by the Court. The VAC noted that its view is confirmed by well-established case law of the administrative courts. See the order of the Supreme Administrative Court of 16 November 2011 case file I OZ 831/11, the order of the SAC of 8 September 2011 case file I OZ 657/11, the order of the SAC of 27 May 2011 case file I OZ 368/11.

See also “E-signature law, case II SA/Gd 573/10“, “E-signature law, case I OPP 25/08” and “E-signatures in Poland“.

Procedural law, case VI SA/Wa 886/11

April 10th, 2012, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 15 June 2011 case file VI SA/Wa 886/11 ruled that introduction of a decision which has as an integral part a justification, into legal transactions, by serving it to the parties without the signature of the Chairman of of the adjudicative panel is clearly in breach of Article 255⁸(2) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.

Article 255⁸
2. Written substantiation of the decision shall be drawn up ex officio within 30 days from the date of its pronouncement. The substantiation shall be signed by the chairman and the member of the adjudicative panel that has drawn up the substantiation. A copy of the decision and the substantiation shall be served upon the parties.

This case concerned the invalidation proceedings of the word trade mark LABRADOR R-203285. The Court ruled the justification is an important part of a decision that allows the Court to follow the reasoning of the PPO which led to the contested decision.

Trade mark law, case II GSK 1261/10

April 9th, 2012, Tomasz Rychlicki

The Polish Patent Office in its decision of 29 January 2010 case no. DT-581/08 refused to grant the right of protection for the word-figurative trade mark FILIPETTI MONTENERO SPUMANTE DEMI SEC DALLA TRADIZIONE ITALIANA Z-298140 that was applied for by Domain Menada Sp. z o.o. for goods in Class 33. The PPO decided that this trade mark is similar to the word trade marks FILIPETTI R-101614 and R-140718 owned by Belvedere S.A. Domain Menada argued that it is a part of the Belvedere Group, and provided a letter of consent. Domain Menada filed a complaint against this decision but the Voivodeship Administrative Court in its judgment of of 21 June 2010 case file VI SA/Wa 710/10 dismissed it. See “Trade mark law, case VI SA/Wa 710/10“. Domain Menada filed a cassation complaint.

Z-298140

The Supreme Administrative Court in its judgment of 8 December 2011 case file II GSK 1261/10 ruled that the letter of consent was not binding and the PPO examined its effects in different aspects, based on gathered evidence, and it found that the letter of consent is not an exemption to grounds for refusing trade mark protection. The SAC stressed that the system of registration of trade marks under the Polish Industrial Property Law is to guarantee the protection of the interests of businesses and consumers. Under the present regulations, the Polish Patent Office may refuse to register a trade mark, despite the agreement between the professional entities that are active in business, due to the risk of misleading and confusion of consumers as to the origin of the goods from a particular entrepreneur. In this sense, the mere will of particular businesses does not directly create and shape the public policy. The PPO is a public authority that takes a decision on the registration of a trade mark, taking into account ex officio circumstances specified in the IPL. The PPO is therefore bound by the provisions of generally applicable laws, and these – as it was indicated above – protect the position and the consumer’s interest.

Procedural law, case II GSK 1206/10

April 6th, 2012, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 29 November 2011 case file II GSK 1206/10 held that the provisions of Article 45(1) of the Constitution of the Republic of Poland provide that everyone should have the right to a fair and public hearing of his or her case, without undue delay, before a competent, impartial and independent court. These provisions include the principle that every court should decide a case without undue delay. This rule is also reflected, among others in the provisions of Article 7 the Polish Act on Proceedings Before Administrative Courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi of 30 August 2002), published in Journal Of Laws (Dziennik Ustaw) No 153, item 1270 with subsequent amendments, that the administrative court should undertake activities aimed at the rapid settlement of the matter of each case and seek to settle the case at the first hearing. In light of these provisions it should be clearly stated, however, that the principle of the speed of court proceedings is not a rule that could be given precedence over the right of the party to defend its rights and personal participation in the hearing, if the legislature included the possibility to postpone the hearing in specific situations. In this case, the Voivodeship Administrative Court in Warsaw improperly assessed the evidence that gave the reason to postpone of the hearing, which resulted in a breach of the right of parties to participate in the hearing and personal defense of their rights in legal proceedings. In consequence, the SAC ruled that there was a reason to decide on the nullity of proceedings.

Trade mark law, case VI SA/Wa 1749/11

April 4th, 2012, Tomasz Rychlicki

On December 2010, the Polish Patent Office refused to grant the righ of protection for the word-figurative trade mark Geo Globe Polska Z-359999 applied for the Polish company GEO GLOBE POLSKA sp. z o.o. sp. k.a. The PPO decided that according to the provisions of Article 131(2)(ii) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments, it is not allowed to grant the right of protection for signs which include the name or abbreviation of the Republic of Poland, if the applicant has not shown entitlement, in particular the permission of the competent authority of the State, to use the trade mark with such element.

2. A right of protection shall not be granted for a sign, if:
(ii) it incorporates the name or abbreviated name of the Republic of Poland, or its symbols (emblem, national colours or national anthem), the names or armorial bearings of Polish voivodships, towns or communities, the insignia of the armed forces, paramilitary organisations or police forces, reproductions of Polish decorations, honorary distinctions or medals, military medals or military insignia, or other official or generally used distinctions and medals, in particular those of government administration, local self-administration or social organisations performing activities in vital public interests, where these organisations’ activities extend to the entire territory of the State or to a substantial part thereof, unless the applicant is able to produce evidence of his right, in particular in a form of an authorisation issued by a competent State agency or a permission given by an organisation, to use the sign in the course of trade,

The company argued that the name “Polska” is not mentioned among the above conditions, and that Geo Globe Polska has an established position in international business. The company argued that it has tried to obtain permission from the competent authority, but it did not succeed, which in its opinion indicates that there is no legal basis to issue the relevant permit. The Chancellery of the Prime Minister and the Office of the President of the Republic of Poland issued statements that the prohibition on use of the name or abbreviation of the Republic of Poland is absolute. Geo Globe Polska filed a complaint against this decision. The company claimed that the PPO should make a literal rather than a broad interpretation of the provisions of IPL. Geo Globe Polska argued that many business entities in Poland are using the term “Polska”.

Z-359999

The Voivodeship Administrative Court in its judgment of 22 November 2011 case file VI SA/Wa 1749/11 dismissed it. The VAC held that it is obvious that the official name “Rzeczpospolita Polska” (Republic of Poland) includs the element “Polska”. Thus, it can be regarded as an abbreviation of the name of the country. The abbreviation “Rzeczposoplita” has constitutional status, i.e. it is included in the Preamble of the Constitution of the Republic of Poland, and its second element, whether in the Polish language or in translation into other languages, is the distinguishing element of the country’s name, and it’s commonly used at international meetings, competitions, including sports events. Moreover, even the Supreme Administrative Court in its judgment of 9 March 2005 case file I GSK 1423/04 published in LEX No. 186863, held that the protection is also afforded for the abbreviations in the form of the ISO 3166 standard for country codes, such as ID or PL. In another judgment of the Voivodeship Administrative Court in Warsaw of 23 March 2007 case file VI SA/Wa 2184/06, the Court held that the name “Poland” is not sufficiently distinctive. The word “Poland” is the English name of the Republic of Poland, and the Polish Patent Office rightly pointed in this case, that even for people who do not know the Polish language, the term “Poland” will always be associated with the country, and not to a specific entrepreneur. The Court also noted that the provisions of Article 6 ter point 1a) of the Paris Convention and Article 7(1)(h) and (i) of the Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark should be taken into account. The Court ruled that the protection of symbols under Article 6ter of the Paris Convention is absolute and applies to all goods and services. It concerns the symbols of particular public interest.

Trade mark law, case II GSK 332/11

March 28th, 2012, Tomasz Rychlicki

On 20 August 2007, the Polish company ALTA Sp. z o.o. from Poznań applied for the figurative trade mark Z-329092 for goods in Class 5, 42 and 44. The Board of the Red Cros submited to the Polish Patent Office observations as to the existence of grounds that cause a right of protection to be denied. On September 2009, the PPO refused to grant the right. ALTA filed a complaint against this decision.

Z-329092

The Voivodeship Administrative Court in its judgment of 12 October 2010 case file VI SA/Wa 1095/10 noted that Article 131(2)(iii) of the Polish Industrial Property Law provides that the right of protection shall not be granted for a sign, if it incorporates the abbreviated names or symbols (armorial bearings, flags, emblems) of other countries, international organisations, as well as official signs, hallmarks indicating control and warranty adopted in other countries, if the prohibition of registration follows from international agreements, unless the applicant is able to produce an authorisation issued by a competent authority, which authorises him to use such signs in the course of trade. The Court ruled that this prohibition applies not only to those symbols as such, but it also prohibits the registration and use of the trade marks that are some kind of imitation of those symbols and copying the relevant characteristics of the heraldic symbols is this kind of imitation. The PPO rightly found that the trade mark in question contains the image of the cross which is at least an imitation of the symbol of the International Red Cross because of similar color (red) and shape. Placing the image of a bear on the cross does not change the fact that this trade mark contains also an image of the cross imitating the Red Cross sign. The provision of Article 131(2)(iii) of the IPL excludes the possibility of granting trade mark rights to the signs that contain symbols of international organizations (if there is no consent of the holder), so other elements of the mark does not matter. Thus placing in the applied sign the image of a cross which is at least an imitation of the International Red Cross symbol, deprives the sign the possibility to be registered as a trade mark. ALTA filed a cassation complaint.

The Supreme Administrative Court in its judgment of 27 March 2012 case file II GSK 332/11 dismissed it.

Procedural law, case VI SAB/Wa 236/11

March 27th, 2012, Tomasz Rychlicki

On May 2009, FAKRO PP sp. z o.o. requested the Polish Patent Office to invalidate the European patent No. PL/EP 1706557 “window and insulating frame kit” that was granted under the European Patent Convention on the territory of the Republic of Poland. On December 2010, the company filed a complaint to the Voivodeship Administrative Court in Warsaw, arguing that the Polish Patent Office did not take any substantive action to decide the case. The PPO argued that it set the hearing date in February 2011, but the hearing was adjourned, and the Adjudicative Board of the PPO ordered the owner of the challenged patent to supplement the evidence in the case within 2 months from the date of the publication of the order. In addition, the PPO noted that the applicant’s representative requested a correction and supplement the minutes of the hearing held in February 2011, a hearing on this matter was set for June 2011. The Voivodeship Administrative Court in its order of 9 June 2011 case file VI SAB/Wa 73/10 discontinued the proceedings. The Company filed a cassation complaint. The Supreme Administrative Court in its order of 25 October 2011 case file II GSK 2108/11 repealed the contested order and sent it back for the reconsideration. The SAC held that the VAC should dismiss the complaint or decide on the failure to act.

The Voivodeship Adminsitrative Court in Warsaw in its judgment of 3 January 2012 case file VI SAB/Wa 236/11 ruled that the provisions of the Code of Administrative Procedure governing time limits for settling cases shall not apply to cases heard by the Polish Patent Office in litigation procedure, but the PPO should make all-out efforts to settle the case within six months from the submission of the request. The VAC ruled that the case for invalidation of the patent at issue was pending before the PPO for more than two and a half years and even during the proceedings before the Courts, it did not end in any decision. Inactivity of the Polish Patent Office in this case was obvious.

Trade mark law, case VI SA/Wa 1242/11

March 26th, 2012, Tomasz Rychlicki

On 23 March 2008, the Polish Patent Office granted the right of protection for the word-figurative 3D trade mark PŁ 1764 R-205770, that was applied for by the Polish company Fabryka Wódek POLMOS ŁAŃCUT S.A, for goods in Class 33 such as vodka. The trade mark represents a glass bottle with a blade of grass put inside, and the crest on the bottle.

R-205770

POLMOS BIAŁYSTOK S.A., the company that was the owner of the word-figurative trade mark POLMOS ŻUBRÓWKA BISON BRAND VODKA R-62081, registered with the earlier priority of 30 August 1985, for goods in Class 33, filed a notice of opposition to the decision of the Patent Office on the grant of a right of protection. POLMOS BIAŁYSTOK claimed similarity of signs and identicality of goods. The Company argued that a blade of grass identifies its product’s image, and the long-term presence on the market caused that the trade mark POLMOS ŻUBRÓWKA BISON BRAND VODKA R-62081 created the belief of the recipients of this type of goods, that the alcoholic product with a grass motif comes from POLMOS BIAŁYSTOK. The Company also claimed that its trade mark is the reputed one, and provided rich evidence material including certificates of quality and market position of vodka sold in bottles with a blade of grass, market research results and reports confirming a strong position of trade marks owned by POLMOS BIAŁYSTOK, as well as articles published in specialized trade magazines. POLMOS BIAŁYSTOK claimed that POLMOS ŁAŃCUT acted in bad faith because its strategy and intention was to create and to file for the right of protection for a product that would look like the brand of “Żubrówka” vodka, by giving it a full set of protected characteristics of the trade mark POLMOS ŻUBRÓWKA BISON BRAND VODKA R-62081, and this situation happened long before the filing date of the questioned sign.

R-62081

The Adjudicative Board of the Polish Patent Office dismissed the request and decided that the comparision of POLMOS ŻUBRÓWKA BISON BRAND VODKA and PŁ 1764 trade marks gave no similarities. The blade of grass inside a bottle may give potential customers certain associations that it is a vodka based on wisent grass. The PPO relied on the provisions of § 3 of the Minister of Agriculture and Rural Development of 25 January 2007 on the definition of requirements for certain spirit drinks with geographical indications relating to the Polish territory, which specifies requirements for a spirit drink “Herbal Vodka from the North Podlasie Lowland aromatised with an extract of visent grass. The PPO has decided that the vodka producers could use the trade marks containing a blade of grass to indicate the type of vodka. The PPO ruled that these signs are examples of commonly used vodka bottles that were sold in the 80s and 90s of the last century. Such bottles are also present in considerable numbers in the Polish market. Thus, these signs per se do not possess distinctive characteristics. The Adjudicative Board noted that legal commentators emphasizes that the packaging of a product is now deemed as a “silent salesman”, and its appearance affects decisions of customers. A distinctive and visually appealing packaging may cause the client to choose the particular product. The PPO cited K. Jasińska, Naśladownictwo opakowań produktów markowych w świetle prawa własności intelektualnej (in English: Imitation of packagings of branded products in the light of intellectual property rights), Warszawa 2010. The PPO found these arguments relevant to the package created by POLMOS ŁAŃCUT which, in PPO’s opinion differs from other packages available on the market. POLMOS BIAŁYSTOK filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 24 August 2011 case file VI SA/Wa 1242/11 repealed the contested decision and ruled it unenforceable. The VAC decided that the analysis of similarity between the signs including its reputation, in this case, was not exhaustive. The PPO did not consider the dominant elements that draw the attention of the buyer. Although PPO stated that the compared trade marks are 3D signs, but the examination of these elements was reduced to comparison of packages only, i.e. bottles. Although, the PPO stated that as a principle, the visual aspect of a 3D sign, is the shape of package and its content, but these two issues (the shape and contents) were separated in the analysis carried out in this case. The Court found that the long time existence of the characteristic element of 3D signs owned by Polmos Bialystok that were intended for designating vodka products and alcoholic beverages – a blade of grass placed in a simple, transparent bottle, as a whole can easily sink into the minds of customers and build the strength that distinguishes this kind of packagings. The Court pointed out that POLMOS BIAŁYSTOK provided evidence that the original żubrówka can be recognized by a wisent grass blade in the bottle. This would mean that for consumers, contrary to the assessment of the PPO, this 3D element constitutes the dominant part of the trade mark, and it can also influence the perception of the trade mark reputation and the need for protection against dilution. The VAC noted that this case involved more than 20-year presence in the market of a bottle with a grass inside, that was associated with POLMOS BIAŁYSTOK. However, in situation, when the package is transparent, placing a characteristic element inside of the packaging, determines distinctiveness of the whole sign, e.g. two similar bottles. The distinctive 3D form – a blade of grass in the bottle increases the message of each of the word trade marks, brings more originality to signs that are protected for over 20 years. There was no doubt that the floating grass in the bottle is the original message that distinguishes the goods of POLMOS BIAŁYSTOK, and is attributed to the origin of goods produced by this particular company. It was impossible to overlook the fact that consumers are seeing a bottle with a characteristic blade of grass, that is associated by them not only with visent vodka, but they also have a guarantee that this is the original product whose reputation was proved by complex evidence. This means that customers choose a product, guided by the attractiveness of its form, because they “see” in this product a trade mark that originates from POLMOS BIAŁYSTOK, whose quality is known to them. The fact is that all signs have a distinctive element. The Polish Patent Office erred by not attaching any importance to it, despite the fact that POLMOS BIAŁYSTOK was the first company that introduced to market a product with such a distinctive element: a long blade of visent grass.

See also “Trade mark law, case VI SA/Wa 2038/09“.

Personal interest, case I CSK 111/11

March 25th, 2012, Tomasz Rychlicki

Cezary Pazura sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Pazura claimed that the company infringed his dignity, the inviolability of the home, privacy and publicity, by publishing 17 articles that concerned his relationship with Edyta Zajac, then fiancee, and now his wife. He argued that comments like “his mistress was no longer pretending, what she meant?”, “oldish playboy” were clear examples of the infringement. The District Court agreed with Mr Pazura, but Grupa o2 appealled, and the Appellate Court reversed the contested judgment and dismissed the suit. Mr Pazura filed a cassation complaint.

The Supreme Court in its judgment of 14 December 2011 case file I CSK 111/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration. The Court held that the public status of a person does not automatically mean that his or her private life becomes also a “public life”. The Court clarified the understanding of the provision of Article 14(6) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), pblished in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.

It is not allowed to publish information and data concerning the private sphere of life without the consent of the person concerned, unless it is connected directly with the public activity of such a person.

The Court ruled that in this case it was necessary to demonstrate the relationship between the public activity carried out by Mr Pazura, and published image, or private information that was published on pudelek.pl website. Therefore, it had to be a relationship between a person’s behavior in the public sphere. In addition, the disclosure of such information should serve to protect specific, socially legitimate interest. Therefore, the primary task of the courts was to determine whether in this case, Mr. Pazura’s consent was granted, or whether it was not needed at all.

Trade mark law, case VI SA/Wa 2051/11

March 21st, 2012, Tomasz Rychlicki

On May 2008, the Polish Patent Office granted the right of protection for the word trade mark COOL RIVER R-205208 in Class 3. This sign was applied for by the Polish company Firma Handlowa A & S PARFUME FACTORY Marek Asenkowicz from Katowice.

ZINO DAVIDOFF SA filed a notice of opposition to the decision of the Patent Office on the grant of a right of protection. DAVIDOFF argued that COOL RIVER is similar to its trade marks such as DAVIDOFF COOL WATER R-71968, COOL DIVE IR-0850699, Cool Water IR-0615313. All these signs are intended to indicate the same goods as the questioned trade mark. DAVIDOFF also claimed that its trade mark COOL WATER IR-0812386 is reputed one. Moreover, the trade mark COOL RIVER has been applied for in bad faith, because A & S PARFUME FACTORY knew about the existence of earlier marks owned by DAVIDOFF. The sale by A & S of perfumes in almost identical packagings, as packagings used by DAVIDOFF was the irrefutable evidence of the use of reputation of DAVIDOFF’s trade marks and the application of COOL RIVER in bad faith.

IR-0615313

The Adjudicative Board of the Polish Patent Office dismissed the request in its decision of 7 March 2011 case Sp. 483/09. While considering the visual and aural similarity of trade marks Cool Water, Davidoff Cool Water and Davidoff Cool Water Wave in relation to the questioned trade mark COOL RIVER, the PPO noted that all the words used in these trade mark have the origin of the English language. However, regardless of whether they will be pronounced in accordance with the spellings of the Polish language or in English, they are different in the visual and aural aspects due to the different verbal elements – WATER and RIVER. Furthermore, the PPO ruled that the word COOL, being the same element in all signs, is a common and popular word associated with something cold. The word WATER differs from RIVER in the visual aspect, and their pronunciation is different. The PPO also found that there were no circumstances indicating that A & S applied for its trade mark in bad faith. The burden of proving bad faith was on DAVIDOFF. At the same time, the overall assessment of the circumstances surrounding the consciousness of A & S at the date of trade mark application will decide on its bad faith. In the opinion of the PPO, such circumstances did not occur. Evidence such as the flyer entitled “list of alternative scents”, similar perfume packagings used by A & S as well as printouts from the website showing COOL WATER and COOL RIVER perfumes, were not sufficent to prove bad faith. Davidoff filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 17 January 2012 case file VI SA/Wa 2051/11 dismissed it. The Court agreed with the PPO that the trade marks are not similar. The VAC also held that the understanding of bad faith should be based on the provisions of the Polish Industrial Property Law. Bad faith occurs if someone applies for the trade mark in order to block other application or in order to block the use of the sign by other entity who uses this trade mark in the market or to take over the company’s market position. Bad faith also exists when someone is filing for a trade mark for speculative purposes, and there was no intent to use the applied sign, and in order to get benefits from the entity that owns such trade mark. Bad faith trade mark application happens when the applicant without due care or being aware, applies for a sign in violation of the rights of another person, or when the applied trade mark is contrary to morality or fair trade practices.

Criminal law, case XI W 1497/11/P

March 15th, 2012, Tomasz Rychlicki

The publisher of histmag.org website requested its users to donate money via PayPal or similar services, in order to raise funds for the functioning of this history site. An anonymous user made a complaint to the former Polish Ministry of Internal Affairs and Administration, now Ministry of Interior, claiming that this action constituted an illegal public money collection, which is prohibited according to the provisions of Article 56 § 1 of the Polish Code of Offences – PCO – (in Polish: Kodeks wykroczeń) of 20 May 1971 published in Journal of Laws (Dziennik Ustaw) of 1971 No 12 item 114, with subsequent amendments.

Whoever, without the required permit or in violation of its conditions, organizes, or holds a public collection of donations, shall be subject to a fine.

According to the Polish Act on Public Collections of 5 March 1933, any public collections of donations in cash or in kind, for a pre-determined goal, requires prior authorization from the authority. This permit should be granted as an administrative decision. The Regional Court in Kraków in its warrant ruling found the publisher guilty. The publisher filed objections to this judgment.

The Regional Court for Kraków-Podgórze in Kraków, Wydział XI Karny in its judgment of 6 February 2012 case file XI W 1497/11/P acquitted the publisher of any charges. The court ruled that the public collection was conducted by receiving direct wire transfers or via PayPal. The provisions of the PCO and the definition of public collection included in the Act on Public Collections refers to public collections of cash or in kind, and are not applicable to electronic transfers.