The Polish website onet.pl reports that the Supreme Court of Republic of Poland will have to decide whether buying counterfeit goods is understood as fencing. This important interpretational problem arose after the recent amendments to article 305(1) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with later amendments.
Article 305(1)
Anyone marking goods with a counterfeit trade mark, registered trade mark for which one does not have the right to use, for the purpose of introducing them on the market or anyone who is making a turnover of goods bearing such trade mark, shall be liable to a fine, limitation of freedom or imprisonment for a period of up to two years.
Article 291(1) of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments, provides different regulations on fencing.
Article 291(1)
Whoever acquires property obtained by means of a prohibited act, or assists in its disposition, or receives such property or assists in the concealment thereof shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years
The Republic of Poland is a Civil law country and there are no binding precedents. Also, the Supreme Court’s resolution is only binding for the court that referred with a specific question, but in practice all Polish courts often apply rules that were interpreted by the Supreme Court.
