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Archive for: January, 2005

Trade mark law, case II GSK 36/05

January 30th, 2005, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 11 May 2005, case file II GSK 36/05, published in the electronic database LEX under the number 166070, ruled that the issue of similarity of trade marks is both the factual and legal category. Such a specific legal status is a prerequisite to justify an overall reference to the alleged breaches of procedural and substantive law, which are related to this issue and the administrative court can conduct its own assessment of the similarity criteria used by the Polish Patent Office.

Z-175554

This case concerned the examination proceedings of the application for word-figurative trade mark 222 PANORAMICZNE Z-175554 filed by Oficyna Wydawnicza PRESS-MEDIA from Mielec.

Categories: Art. 184 PBAC | likelihood of confusion | Polish Supreme Administrative Court | similarity of signs | trade mark examination.

Personal rights, case I CKN 100/01

January 26th, 2005, Tomasz Rychlicki

The Supreme Court in a judgment of 7 March 2003, case file I CKN 100/01, ruled that the symbol of a legal person is a carrier of its identity in the external perception, and like the name or the firm, it constitutes a personal interest/right of such company.

Copyright law, case I CR 666/69

January 19th, 2005, Tomasz Rychlicki

The Supreme Court in a judgment of 10 February 1970, case file I CR 666/69, published in OSP 1972, No. 2, item 30, considered the co-creative contribution of several authors as the essential feature of the joint work, whereby the “co-creativeness” is expressed in an indivisible creation, which is a common and indivisible in terms of creative process that led to its production. The creative work of each of the authors may be in relation to each other in terms of time or as a concurrent, or as the work of each of the contributors following one after the other. According to the court, between such works should occur a relation that each of such work would not individually lead to the creation of an independent work of a particular type.

In this case, the Court called for the exclusion from the definition of a joint work of actions that were based on compiling the work of others in terms of an editorial job, or adding philological, critical or comparative comments, etc.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Categories: co-autorship | copyright law | joint work | Polish Act on Authors Rights and Neighbouring Rights | Polish Supreme Court.

Procedural law, case FZ 165/04

January 12th, 2005, Tomasz Rychlicki

The Supreme Administrative Court in its order of 18 June 2004 case file FZ 165/04 ruled that the burden of proof to demonstrate the circumstances justifying the granting of the right of assistance lies with the applicant for the grant of such assistance. The right of assistance covers the exemption from court fees and the establishment of the lawyer, tax advisor, or patent attorney. See also “Procedural law, case II GZ 141/10“.

Categories: Art. 184 PBAC | Art. 245 PBAC | Art. 246 §1 PBAC | Polish Act on Proceedings Before Administrative Courts | Polish Supreme Administrative Court.

Trade mark law, case II GSK 92/05

January 11th, 2005, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 18 October 2004 case file II GSK 92/05 held that the capability of distinguishing the goods or services (so-called abstract ability to distinguish goods or services) must be distinguished from the sufficient distinctiveness. Only after finding that a given sign is capable to serve as a trademark, its distinctive ability in concreto is subject to examination. The trade mark cannot be identified with the product itself.

R-116211

The contradictions with the law or rules of social coexistence, that are the condition of inadmissibility to register a trade mark must not only connect directly to the sign itself, but also to the circumstances surrounding the registration of the mark if they contain elements contrary to law or the rules of social coexistence. In addition, the violation of other laws than those included in the TMA should be considered as the registration contrary to law. The registration of a 3D trade mark whose sole purpose is to monopolize the market of a given product and thus deprive the competitors of the freedom of establishment as regards the possibility of further production of the same product, is violation of the provisions of the law.

Unfair competition, case II CKN 578/99

January 10th, 2005, Tomasz Rychlicki

The Supreme Court in a judgment of 11 October 2001, case file II CKN 578/99, ruled that the act of unfair competition in the form of unauthorized imitation of packaging of another company and the act of selling products in such packaging may justify the tortious (delict) liability for damage in the form of lucrum cessans (profits given up) if between the unauthorized imitation and the damage exists a normal causal link/nexus. The case was decided based on article 10(1) of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No. 47, item 211, with later amendments.

Article 10
(1) Such indication of products or services or its lack, which may mislead customers in relation to the origin, quantity, quality, components, manufacturing process, usefulness, possible application, repair, maintenance and another significant features of products or services as well as concealing the risks connected with their use, shall be the act of unfair competition.

Personal rights, case II CR 187/77

January 8th, 2005, Tomasz Rychlicki

The Supreme Court in a judgment of 10 June 1997, case file II CR 187/77, ruled that the analysis of Article 23 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with later amendments, and the existing case law of the Supreme Court, allows for the adoption of the opinion that personal right/interest, is the aggregate of factors aimed at ensuring the development of human personality, to protect human life and to ensure the right to the use of these interests, which are available at any given stage of the socio–economic development of our society, and which are also conducive to preserving the autonomy of a human being and may help to bind a human being with the society. The concept of “personal right/interest”, includes such an element as the right of access to public places of recreation and entertainment. Therefore such personal interests may be affected by issuing a ban that would prevent the practical exercise of this right and thus a person may take all legal measures to protect this right.

Trade mark law, case II SA 2914/01

January 6th, 2005, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 28 February 2002, case file II SA 2914/01 published in Monitor Prawniczy 2002/7/291 held that Article 8 of the Convention does not constitute an independent basis for the protection of the trade name of the entrepreneur, because it does not specify conditions for such protection and does not indicate what claims should be used in the case of infringement of the rights to the company name. However, this affect the domestic law.

R-107547

This case concerned trade mark invalidation proceedings of ROLEX R-107547 trade mark owned by Woźniak Krzysztof ROLEX Przedsiębiorstwo Produkcyjno Handlowo Usługowe. The proceedings were started by ROLEX SA company who owns ROLEX R-64281 trade mark.