Polish IP & IT law – copyright trademark computer internet telecomm » 2007

Archive for: December, 2007

Polish regulations on unfair commercial practices

December 30th, 2007, Tomasz Rychlicki

The Act of 23 August 2007 on Combating Unfair Commercial Practices – CUCP – (in Polish: ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym) published in Journal of Laws (Dziennik Ustaw) No. 171, item 1206, came into force on 21 December 2007. It implemented the Directive 2005/29 of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450, Directives 97/7, 98/27 and 2002/65 of the European Parliament and of the Council and Regulation 2006/2004 of the European Parliament and of the Council (“Unfair Commercial Practices Directive”).

Among others things, it defines in article 5(1) misleading commercial practices as actions connected with introduction of products into the market which may lead to mistake as regards to products, its packaging, trade marks, trade names or other signs capable of identifying entrepreneurs, particularly comparative advertising.

The Act also deals with crypto-advertising which is defined as using commentary content in mass-media sources to promote a product where the business/entrepreneur paid for such action but it is not clearly indicated in the content, images or sounds and it is not easily identified by the consumer.

The Act also covers aggressive commercial practices. It defines such actions as (i) onerous processes which are not connected with consumers’ actions or (ii) desisting from acting, i.e. inducing the purchase of products via phone, fax, electronic mail or other means used to communicate in distance.

Trade mark law, VI SA/Wa 1100/07

December 21st, 2007, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in a judgment of 18 December 2007, case file VI SA/Wa 1100/07, rejected McDonald’s Corporation complaint against the Polish Patent Office’s decision and ruled that a Singapore company was allowed to register MacCoffee mark for coffe products. McDonald’s will not be allowed to “monopolize” the Mc-prefix. This judgment should make all trade mark practitioners aware of differences between legal systems. Especially when this Polish case is compared to holding in the case Quality Inns Int’l v McDonald’s Corp., 695 F. Supp. 198 (D. Md. 1988). The Court ruled that Quality International’s use of the name “McSleep” infringed McDonald’s family of marks that are characterized by the use of the prefix “Mc” combined with a generic word.

Contract law, case III CZP 109/07

December 11th, 2007, Tomasz Rychlicki

The Supreme Court in its order of 22 October 2007 case file III CZP 109/07 decided in case brought by Naukowa i Akademicka Sieć Komputerowa (Research And Academic Computer Network ) against two tenders with regard to the payment of fees for the maintenance of the domain name, held that the agreement/contract on the maintenance of the domain name is not a telecommunications services agreement but rather an unknown type of a contract similar to the contract of mandate. By a contract of mandate, the mandatary shall assume the obligation to perform a definite act in law for the mandator. The provisions on mandate shall apply respectively to contracts on performance of services not regulated by other provisions. Therefore the claim for compensation under the contract on the maintenance of the domain name terminates based on the general civil law rules on the expiration of time limits, i.e. unless a special provision states otherwise, the period of limitation shall be ten years and for claims pertaining to periodical performances and claims resulting from an economic activity, three years.

See also “Polish case law on domain names“.

Categories: Art. 750 CC | domain names | Polish Civil Code | Polish Supreme Court | Polish TLDs.

Advertising of pharmaceuticals, case VII SA/Wa 1157/07

December 7th, 2007, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 3 October 2007 case file VII SA/Wa 1157/07 held that a given activity is deemed as the advertising of pharmaceutical product, if it involves the transfer of information on the product while encouraging its use – i.e., it must be information describing the medicinal product in a way to encourage its use, information that is passed to increase the number of prescriptions, the supply of pharmaceutical product or its sale or consumption.

Trade mark law, case II GSK 207/07

December 4th, 2007, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 21 November 2007, case file II GSK 207/07, held that even if the reputed mark is protected against the use on any goods, if this would bring a user an unfair advantage or it would be detrimental to the distinctive character or the reputation of the trade mark, it does not mean that the both signs at issue shouldn’t be a subject to examination to determine their similarity or lack of it. The case concerned a notice of opposition to a final decision of the Polish Patent Office on the grant of a right of protection to “dodoni A MOŻE MY JESTEŚMY DLA CIEBIE LEPSI COLA” trade mark R-149636, that was registered for Pepsi Corp. The SAC also ruled that the findings that both trade marks are not similar also implies that there is a lack of association between these trade marks by potential recipients.