The Supreme Administrative Court in its judgement of 28 March 2002, case file II SA 2778/01 held that according to the settled case-law, all the issues with regard to the similarity of trade marks are resolved on the basis of the risk of confusion as to the origin of goods. And the risk of confusion as to the origin of goods consists of similarity of goods and similarity of signs. The Court ruled that the trade marks are compared and examined globally, with particular emphasis on its dominant and distinctive elements. This case concerned “Królewska Para” R-115243 trade mark.
Archive for: February, 2005
Trade mark law, case II SA 2778/01
February 28th, 2005, Tomasz RychlickiPress law, case V CK 675/03
February 25th, 2005, Tomasz RychlickiThe Supreme Court – Civil Chamber in its judgement of 15 July 2004 case file V CK 675/03 held that the publisher is required to control the content of advertisings that were posted in its magazine only in terms of their compliance with laws and principles of social coexistence. For the remaining contents the responsible person is the one who commisioned such advertisings.
Polish patent attorneys, case CK III 580/03
February 24th, 2005, Tomasz RychlickiOn the basis of article 4, section 1, of the Polish Act on Patent Attorneys – APAT – (in Polish: ustawa o rzecznikach patentowych) of 11 April 2001, Journal of Laws (Dziennik Ustaw) No. 49, item 509, with subsequent amendments, a patent attorney profession is to provide assistance in matters of industrial property: to private individuals, legal persons and entities without legal personality.
Article 2. Whenever in this Act is referred to the Industrial Property – shall mean:
1) acquisition, preservation, carrying out and enforcing of rights related to industrial property, and in particular to inventions, utility models, industrial designs and topographies of integrated circuits, as well as trademarks, trade names and geographical indications,
2) combating unfair competition in respect of items referred to in paragraph 1.
The scope of representation for matters relating to unfair competition has been recognized in the act quite narrowly. It was confirmed by the Polish Supreme Court in a judgment of 16 October 2004, case file CK III 580/03, which was published in the Jurisprudence of the Supreme Court, the Civil Chamber (in Polish: Orzecznictwo Sądu Najwyższego Izba Cywilna) of 2005/9/164/109. The Court simply held that a patent attorney may be a representative in judicial proceedings, which are the subject of a claim arising from unfair competition in respect of items referred to in article 2, section 1 of the Law on Patent Attorneys of 11 April 2001 Dziennik ustaw No. 49, pos. 509.
Advertising, case I SA/Sz 2000/00
February 24th, 2005, Tomasz RychlickiThe Supreme Administrative Court in its judgment of 18 April 2001, case file I SA/Sz 2000/00, published in the electronic database Lex no. 48952, held that the term, “advertising is carried out in the media or publicly in any way”, means that such public advertising is directed to an unidentified customer or client, is indefinite, but universal in the sense of local or national or supranational scope. According to the SAC public means of advertising other than by the mass media, is a way of advertising way characterized by commonness, publicity, general availability, and are destined for (or to) all, depending on how it was expressed.
Trade mark law, case I ACr 770/93
February 24th, 2005, Tomasz RychlickiThe Appellate Court in Gdańsk in its judgment of 24 November 1993, case file I ACr 770/93, held that the name “Gdańsk” is not the local government unit, which is the “Gdańsk Municipality”, but a geographical name used in Poland and abroad. Foreign language versions are well-established names of Gdańsk, e.g. German – Danzig, Italian – Danzica, Latin – Gedania. Nouns and adjectives form the geographical name are used without restrictions. Restrictions on freedom to use and commercialize the public goods requires introduction of a legal act. However, there is no law limiting the use of the name of the city. In particular, the provision of article 18(1) of the Polish Act of 8 March 1990 on Local Self-government (in Polish: ustawa o samorządzie terytorialnym) Journal of Laws (Dziennik ustaw) of 1990 No. 16 item 1995, as amended, does not authorize the municipal council to restrict the use of geographical names and the introduction of fees for their use. There is another legal basis for such commercialization.
It should be also noted that the names of Polish towns and cities were settled in the Polish Act of 29 August 2003 on the official names of localities and physiographic objects, Journal of Laws (Dziennik Ustaw) No. 166, item 1612, as amended. The name, short name and coat of arms of Capital City of the Republic of Poland are regulated by the Act of 15 March 2002 on the system of Capital City of Warsaw, Journal of Law (Dziennik Ustaw) No. 41, item 361, as amended. In the case of place names, which are both common nouns, the refusal of protection shall be permitted only if the other elements of the trade mark are clear that the applicant refers his sign to the name of the village and not to an ordinary noun (e.g. in addition to the trade mark there is attached a map that identifies a name with a specific town).
See also posts entitled “Trade mark law, case 6 II SA 1156/02“, “Trade mark law, case II SA/Wr 2928/02” “Trade mark law, case VI SA/Wa 1945/05“, “Trade mark law, case Sp. 127/07 and Sp. 254/07” and “Trade mark law, cases VI SA/Wa 1996/08 and VI SA/Wa 1995/08“.
Personal interest, case I ACr 1013/95
February 21st, 2005, Tomasz RychlickiThe Appellate Court in Warsaw in its judgment of 19 December 1999, case file I ACr 1013/95, held that the reputation of the company is understood as a general positive perception and evaluation of products of such a company that is expressed by consumers. It may be treated as personal interest/rights of a legal person to which it apply mutatis mutandis, by articles 23 and 24 f the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with later amendments.
Article 23
The personal interests of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.Article 24
§ 1 The person whose personal interests are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.
§ 2 If as the result of a breach of personal interests one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.
These non-economic/non-commercial values by which a legal person may operate on the market in accordance with the scope of its business, are also its personal rights interests.
Trade mark law, case I ACa 687/98
February 19th, 2005, Tomasz RychlickiThe Appellate Court in Katowice in its judgment of 3 March 1999, case file I ACa 687/98, held that the knowledge of a sign among the potential buyers predetermines whether a trademark is well known. However, due to far-reaching specialization of production it cannot be excluded that this range of potential buyers will be limited to a closed group of specialist. Therefore, a well-known trade mark that is recognized by such a group, will not necessarily be known to the average purchaser/consumer, who does not participate in this specialist market.
E-voting, case I ACa 898/00
February 18th, 2005, Tomasz RychlickiThe Appellate Court in Warsaw in its judgment of 18 September 2001, case file I ACa 898/00, held that voting with the help of computer technology, meets the requirements of secrecy within the meaning of a provision providing shareholder unfettered opportunity to vote, and is in accordance with provisions of article 411 of the The Commercial Companies Code – CCC – (in Polish: Kodeks spółek handlowych) of 15 September 2000, Journal of Laws (Dziennik Ustaw) No. 94, item 1037 with later amendments.
Art. 411. § 1. A share shall carry one vote at the general assembly.
§ 2. The voting right shall arise as of the date the share is paid for in full, unless the statutes provide otherwise.
§ 3. The statutes may limit the voting rights of shareholders controlling more than one-fifth of the total number of votes in the company. The limitation may apply only to the exercise of the voting right on shares above the limit of the votes provided for in the statutes.
§ 4. The statutes may also provide for cumulating of the votes held by the shareholders among whom there exists the relationship of dominance or dependence in the meaning of this or another act, as well as set out the rules for the reduction of the votes. In that case the votes attached to the shares of the dependent company or co-operative shall be added to the votes attached to the shares of the dominant company.
Advertising, case I SA/Gd 409/96
February 17th, 2005, Tomasz RychlickiThe Supreme Administrative Court in its judgment of 10 December 1997, case file I SA/Gd 409/96, held that the nature of public or non-public advertising is always determined by its recipients. Non-public advertisement is expected to be addressed only to a specific recipient. Any form of business promotion sent to an anonymous pool of potential consumers/recipients is deemed as public advertising.
Polish case law on domain names
February 12th, 2005, Tomasz RychlickiBelow you will find a list of judgments on Internet domains. This list does not include judgments and decisions issued by arbitration bodies and authorites. You can find a more detailed discussion on each judgment under the link provided with the case file. All judgments are given in chronological order.
- The judgment of the Appellate Court in Warsaw of 1 April 2011, case file I ACa 1087/10.
- The decision of the Appellate Court in Lódż of 24 March 2010, case file I ACz 232/10.
- The judgment of the District Court in Białystok of 2 March 2010, case file I C 2179/09.
- The judgment of the Appellate Court in Białystok of 6 May 2008, case file I ACz 364/08.
- The judgment of the Appellate Court in Warsaw of 16 April 2008, case file I ACa 1334/07.
- The judgment of the Voivodeship Administrative Court of 30 November 2007, case file II SA/Wa 71/07.
- The order of the Supreme Court of 22 October 2007 case file III CZP 109/07.
- The judgment of the Polish Court of Competition and Consumer Protection of 26 December 2006, case file XVII AmC 170/05.
- The judgment of the Appellate Court in Katowice of 16 June 2006, case file I ACa 272/06.
- The judgment of the Appellate Court in Poznań of 26 April 2006, case file I ACa 1228/05, published in electronic database LEX no. 214296.
- The judgment of the Regional Court for Warszawa-Mokotów, case file II C 1091/04.
- The judgment of the District Court in Łódź, X Commercial Division of 22 June 2004, case file X GC 1245/03.
Personal rights, case I ACa 560/04
February 10th, 2005, Tomasz RychlickiThe Appellate Court in Katowice in its judgment of 4 November 2004, case file I ACa 560/04, ruled that the firm which in this case was understood as the company name, is often intellectual interest/asset of significant value, which according to the will of the legislature is protected by the law. This is an absolute subjective right which is effective erga omnes, and it’s personal interest/right that is associated with an entrepreneur.
The broadest spectrum protection that may be enforced not only in commerce but also may be brought against anyone who is in breach of the interest of entrepreneurs, is provided in articles 23 and 24 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.
Article 23
The personal interests/rights of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.Article 24
§ 1 The person whose personal rights are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.§ 2 If as the result of a breach of personal rights one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.
The Court also ruled that if a press title is encroaching a realm of personal property, and if such action violates or threatens the interests of another entrepreneur, the sufferer may exercise his power by seeking civil protection through civil process. There must exist the real apprehensive of an infringements and valid registration for the press title for the effectiveness of such a claim.
Trade mark law, case III CK 410/03
February 5th, 2005, Tomasz RychlickiThe Supreme Court in its judgment of 27 October 2004 case file III CK 410/03 held that the use of someone else’s trademark for information purposes and in advertising is allowed, if it does not mislead as to the existence of economic links between the trade mark owner and the person that uses such trade mark.