Archive for: July, 2007

Access to public information, case V Ca 454/07

July 30th, 2007, Tomasz Rychlicki

Sergiusz Pawłowicz who was also the leading programmer of Janosik project, went the same administrative proceedings as ISOC Poland. See “Access to public information, case OSK 600/04“. At the final stage the Supreme Administrative Court rejected Sergiusz’s complaint on the decision of the Voivodeship Administrative Court case file II SAB/Wr 72/02, recognizing that the proper course shall be a civil action.

Sergiusz filed a complaint requesting the civil court to order ZUS to disclose specification of KSI MAIL protocol being public information. The Regional Court in Warszawa in its judgment of 8 December 2006 case file XVI C942/04 ruled that publication of the protocol that is used by Płatnik software will not affect in any way the integrity of safety of data sent by this software. Therefore all arguments raised by ZUS with regard to data security were unfounded. The Court also held that ZUS did not prove that the protocol of KSI MAIL is protected by copyrights that belongs to Prokom Software S.A. or whether Prokom received any patent covering this protocol.

As for the argument that ZUS’s obligations regarding confidentiality of information about technologies used in Płatnik and its source code, which resulted from the agreement between ZUS and Prokom, the court held that according to the obligation to disclose public information included in article 13 of the Act on the Informatization of Activities Undertaken by Entities Fulfilling Public Tasks (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne), the provision of the agreement as a ius dispositivum, may not impose negative consequences on Sergiusz.

The court also held that the use of the requested public information and legal interest that Sergiusz and its legal representative derrived from the social interest was beyond the scope of the whole dispute. Simply, there is no need to prove legal interest when requesting the access to public information.

ZUS filed an appeal complaint. The Appellate Court in Warsaw in its judgment of 23 April 2007 case file V Ca 454/07 rejected it. The Court held that the court of first instance provided deep and proper analysis of binding legal norms and its judgment was correctly applied.

Categories: Art. 1 ARNR | Art. 1(1) API | Art. 5(2) API | Art. 75 ARNR | copyright law | copyrightable subject matter | e-law issues | free or libre and open source software | legal regulations on computer networks | Polish Act on access to public information | Polish Act on Authors Rights and Neighbouring Rights | Polish Appeallate Court | Polish Regional Court | Polish Supreme Administrative Court | public information | Voivodeship Administrative Court.

Trade mark law, case II GSK 248/06

July 21st, 2007, Tomasz Rychlicki

This is the continuation of a story described in “Trade mark law, case VI SA/Wa 55/06“. Piotr Dyszkiewicz and Zbigniew Anozy – both partners of civil partnership, unsatisfied with the judgment of the Voivodeship Administrative Court (VAC) in Warsaw, have filed a cassation complaint.

Z-223847

The Supreme Administrative Court its judgment of 22 March 2007 case file II GSK 248/06 repealed both the questioned order of the Polish Patent Office and the judgment of the VAC. The SAC based its conclusions on procedural matters. According to the SAC, all problems discussed by the VAC with regard to the co-ownership of THERMO SHIELD Z-223847 trade mark application and partners who quit the cvil partnership, were not a procedural issue, but it concerned very important merits, namely, who should be granted the right of protection for the trade mark for certain goods. The provisions the IPL does not provide that such an issue could be resolved by the order in the proceedings, i.e. before the adoption of a decision of the Polish Patent Office on the termination of the proceedings regarding THERMO SHIELD Z-223847 trade mark application. This is a substantive matter and a conclusion can be taken only in the decision of the PPO issued in proceedings involving all the people who made the trade mark application as partners of the civil partnership.

Categories: Art. 120(1) IPL | Art. 120(2) IPL | Art. 162 IPL | Art. 168 IPL | Art. 325 IPL | case law | Polish Supreme Administrative Court | trade mark co-ownership | trade mark refusal | trade mark register | trademark law.

Trade mark law, case II GSK 13/07

July 19th, 2007, Tomasz Rychlicki

Wierzbicki Jan, Krzywdziński Andrzej Przedsiębiorstwo Produkcyjno Handlowo Usługowe MACRO applied to the Polish Patent Office (PPO) for “ŚWIAT KAWY I HERBATY” (TEA AND COFFE WORLD) trade mark Z-205579, for goods in classes 30, 42. Dariusz Z. who conducts its business under the firm “Świat Kawy i Herbaty” and who had established contractual relationships with the applicant, submited to the Patent Office his observations as to the existence of grounds that may cause a right of protection to be denied. The PPO refused to grant rights of protection for “ŚWIAT KAWY I HERBATY” trademark. MACRO filed a complaint. The Voivodeship Administrative Court in its judgment of 27 July 2006 case file VI SA/Wa 871/06 upheld the contested decision and MACRO filed a cassation complaint.

The Supreme Administrative Court in its judgment of 24 May 2007 case file II GSK 13/07 held that the firm (company name) of a individual person is its personal right/interest and it may be an obstacle to registration of a trade mark. According to the SAC, the sale of goods on the stand/trading post under the trade name identical to that trade mark cannot be treated as a trade mark use since the essence of the trade mark is to identify the goods with a particular trader, and the use of the mark should primarily consist of placing a mark on the products or their packaging.

Categories: Art. 23 CC | Art. 24 CC | Art. 28(1) TMA | Art. 8(1) TMA | Art. 8(2) TMA | bad faith | firm | genuine use | non-use | personal rights or interests | Polish Act on Trade marks | Polish Civil Code | Polish Supreme Administrative Court | similarity of signs | trade mark use | trademark law.

Copyright law, case I ACa 668/06

July 18th, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 14 May 2007, case file I ACa 668/06, published in the Jurisprudence of Appellate Courts (in Polish: Orzecznictwo Sądów Apelacyjnych) of 2008, No 12, item 39, p. 48, held that a trivial and simple language phrase being a short fragment of popular “Baśka” song and not being a citation or borrowed quote, that was included in the disputed advertisement, and at most being an inspiration and a reference to the distant associations, does not justify the assumption of copyright infringement. The particular freedom concerns the advertising market. Indeed, such activity because of its short forms and the need for articulated skills must operate by abbreviations, references to familiar themes, characters and situations. An advertising is also a trade statement of informational nature, so it enjoys the right to freedom of expression and freedom of information. Restrictions of these rights may occur only to the extent necessary, by third party interests. While preserving the principle of non-transferability of author’s personal (moral) rights, it is permitted to waive of the exercise of these rights by the creator, to third parties, including entrepreneurs.

Categories: Art. 1 ARNR | Art. 23 ARNR | Art. 29 ARNR | Art. 78 ARNR | Art. 79 ARNR | copyright infringement | copyright law | copyrightable subject matter | moral rights | Polish Act on Authors Rights and Neighbouring Rights | Polish Appeallate Court | quotation right.

Trade mark law, case VI SA/Wa 1945/05

July 11th, 2007, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 17 January 2006, case file VI SA/Wa 1945/05 in case concerning “SZCZAWNICKI zdrój” R-147476 trade mark ruled that the Polish Patent Office while deciding the request for the invalidation of the right of protection for a trade mark has to examine the sign in a form in which it was applied for the registration not in a form that the trade mark is used on the market, for example as the product label. The refusal of the invalidation of “SZCZAWNICKI Zdrój” trade mark (used inter alia as a designation for mineral waters), which was conducted by the Polish Patent Office without adequate consideration, especially in case if the disputed mark has information character that points to the place of origin of goods that are produced by the prorietor of the earlier trade mark registration and which may in consequence be perceived by the consumers as an indication which has no relation with a given producer, was made in violation with the provisions of administrative procedure.

R-147476

See also my posts entitled “Trade mark law, case 6 II SA 1156/02“, “Trade mark law, case II SA/Wr 2928/02“, “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“.

Categories: Art. 131(1)(iii) IPL | Art. 131(4) IPL | Art. 132(1)(i) IPL | case law | geographical name as trade mark | Voivodeship Administrative Court.