A small exercise for your legal skills. Please identify legal problems and issues concerning those two posters. First one is the advertising poster of Jacek Graniecki’s music achievements, he is better known in Poland as TEDE. The second one was used to promote a movie titled “Karol: A Man Who Became Pope“.
Archive for: May, 2008
Trade mark law, case Sp. 371/07
May 27th, 2008, Tomasz RychlickiThe Polish newspaper Rzeczpospolita reported on a Polish Patent Office decision, case file Sp. 371/07, regarding the Latin slogan “primus inter pares“. The PPO decided that Niezależne Zrzeszenie Studentów (Independent Students’ Union, NZS) registered this mark in bad faith. The PPO based its findings on the fact that NZS’s director used to be a member of Zrzeszenie Studentów Polskich (Polish Students Association, ZSP). This is the organization that opposed the registration of “primus inter pares” and which has used this slogan since the early sixties. ZSP had also previously tried to register the same trade mark in 1989. Both Parties may lodge a complaint to the Administration Court.
See also “Poland: prior tempore potior iure in primus inter pares?“.
What a disclaimer
May 26th, 2008, Tomasz RychlickiNot so long time ago I’ve published a post entitled “Enforcing EULAs“. Meanwhile, looking through the net I found such release as Ahead.Nero.v8.3.2.1.Incl.Keymaker-EMBRACE and I’ve also noticed such a statement in the .nfo file.
EMBRACE, nor its members, can be held responsible
for anything they release. If it is illegal in your
country (as it is in most), you ARE NOT ALLOWED to
use it, under any circumstances. We are in the scene
for the fun, NOT to harm software developers. Good
software deserves your respect, go buy it!Our software is released “as is”. We are in no way
to be blamed for anything that happens to your pc if
you use this. The author here by disclaims all the
warranties related to this software, expresed or
implid, including damage to hardware/software and/or
any date from the user of this product.Your use of this product assumes that you have read
and accepted this disclaimer.
Do I need to mention that it is really easy to aviod any legal problems just by the use of free software alternatives? More details regarding this .nfo file are available at nfodb.com website. Some of my post that may touch similar issues are gathered under contract law category.
I do not want to brag about myself but I wrote once in the post entitled “The Law” that I want to write some article. You may wonder what has happened after almost two years since I’ve issued such statement?
Legal context: This article deals with most important legal questions regarding graffiti. It seeks to identify issues that may arise in copyright and trade mark law. The analysis is based on selected international, Polish, UK, US and European Union regulations.
Key points and practical significance: The social phenomenon known as graffiti is not legally indifferent. However, there are few articles dealing with those issues relevant in IP law. The author presents a short overview of the contemporary graffiti movement. He then presents important IP legal problems that may arise as regards to graffiti activity and briefly analyzes those issues relevant to domestic and international legal regimes.
Key Words: Most graffiti is illegal, but that does not mean that interesting IP questions do not arise in relation to this cultural phenomenon. Following a short overview of the contemporary graffiti movement, the author article seeks to analyse some of the basic questions that arise concerning copyright protection and industrial property law. The author calls for a more focused analysis in the future of this controversial problem.
T. Rychlicki, “Legal questions about illegal art“, Journal of Intellectual Property Law & Practice 2008 3(6):393-401; doi:10.1093/jiplp/jpn058.
90th Anniversary of the Polish Patent Office
May 21st, 2008, Tomasz RychlickiOn 28 December 1918, the Polish Patent Office was established. The Republic of Poland has entered into the Paris Convention for the Protection of Industrial Property on 10 November 1919, joining international cooperation in this field. The first registration of a Polish national trade mark took place on 11 April 1924 and the first Polish national patent was granted on 24 April 1924.
In October 2008 the PPO will hold an international conference devoted to history of industrial property in independent Poland. The Polish Patent Office has also published its bilingual jubilee report, which can be retrieved as a PDF file.
Poland: one beer for Euro 2012
May 15th, 2008, Tomasz RychlickiIn the article entitled “Mecze z jednym piwem“, the Polish newspaper Gazeta Wyborcza reports about the statement issued by Tomasz Zahorski who is representing the PL2012 Company. PL2012 was created by the decision of Ministry of Sport and Tourism of the Republic of Poland and it is responsible for coordination and supervising the organization of UEFA Euro 2012.
Strong protection of UEFA’s trade marks, designs and watchwords will distinguish Polish-Ukrainian championships
Said Mr Zahorski during the meeting with the representatives of Polish cities in which football games will be held. In this connection, open-air bars in which football games are usually screened will be built by only one sponsor.
Patent law, case VI SA/Wa 2091/07
May 12th, 2008, Tomasz RychlickiThe Voivodeship Administrative Court in its judgment of 20 March 2008 case file VI SA/Wa 2091/07 ruled that the request for restitution of a term to file a request on rehearing is subject to article 58 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.
Article 58.
§ 1. If the deadline is infringed it may be rescheduled at the request of an interested party if it appears probable that the infringement was not caused by that party.
§ 2. A request to reschedule the deadline should be made within 7 days of the reason for the deadline’s infringement coming to an end. However, the actions for which the deadline was set must be carried out simultaneously with the request being made.
§ 3. It is not possible to reschedule the deadline for making the request referred to in § 2.
However, provisions of article 243(1) deals with the time limits set by the Polish Patent Office, while the deadline for The request for restitution of a term to file a request on rehearing is a term defined in the APC.
Article 243
1. Unless otherwise stipulated in this Law, where in the course of proceedings a time limit to perform an act requisite, under this Law, for continuance of the proceeding has not been observed, the Patent Office may, at the party’s request, restore the time limit, provided that the party provides a plausible explanation that non-observance was without fault on its part.2. Subject to paragraph (4), the request referred to in paragraph (1) shall be submitted to the Patent Office within two months from the date on which the reason for non-observance has ceased to exist, however not later than within six months from the date of the expiry of that time limit. At the same time, the requesting party shall be required to perform the act in respect of which the time limit was fixed.
3. A time limit to submit the request referred to in paragraph (2) shall not be restorable.
4. Where a decision has been taken on discontinuance of the proceeding for the reason of failure to observe a time limit for performance of a specified act, that decision, at the party’s request for re-examination of the matter, may be reversed, provided that the party provides in the request a plausible explanation that the non-observance was without fault on its part, while performing, at the same time, the act in respect of which the time limit was fixed.
5. Where the time limit for filing an application for the purpose of preserving the right of earlier priority or the time limit for furnishing a document expires on a day on which the Patent Office is closed to the public, the application or the document received on the first subsequent day on which the Patent Office is open to the public shall be deemed to have been received within the time limit concerned.6. In respect of time limits, to which paragraph (1) is not applicable, and the non-observance of which has been caused by exceptional circumstances, the provisions on suspension of the course of negative prescription caused by acts of God shall apply accordingly. In such cases, the Patent Office shall give orders after having been furnished with relevant evidence by the interested party.
7. Notwithstanding the provisions of paragraphs (5) and (6), the Patent Office shall secure the reception at any time of day of letters delivered by interested persons.
The fact that this applies only to time limits set by the PPO is showed in wording of article 243(2) of the IPL. This whole provisions of article 243 of the IPL apply only to certain categories of terms. This limitation results from the wording of this provision.
Skype gives up
May 9th, 2008, Tomasz RychlickiSkype has withdrawn the appeal against a judgment in the case LG München I, Az. 7 O 5245/07 – Welte/Skype, unpublished. Harald Welte has written more details.
The various arguments by Skype supporting their claim that the GPL is violating German anti-trust legislation as well as further claims aiming at the GPL being invalid or incompatible with German legislation were not further analyzed by the court.
The argument that GPL violates anti-trust law was already discussed before the US courts in the case Wallace v. IBM, 467 F.3d 1104 (7th Cir. 2006). Chief Judge Frank Hoover Easterbrook wrote explicitly:
The GPL and open-source software have nothing to fear from the antitrust laws.
Trade mark law, case Sp. 161/07
May 9th, 2008, Tomasz RychlickiIn the article entitled “Chantal nie koliduje z marką Chanel“, the Polish newspaper Rzeczpospolita about recent decision of the Polish Patent Office, case act signature Sp. 161/07, regarding the registration of Chantal trade mark. Przedsiębiorstwo Produkcyjno-Handlowe Chantal Roman Godek applied for CHANTAL trade mark registration in classes 3 and 5 in 2002. The PPO issued its positive decision and registered CHANTAL R-170165 trade mark on 16 December 2006. Chanel opposed. The PPO acknowledged the reputation of Chanel mark and similarity of goods, however the Opposition Board also concluded that both marks are not alike in this manner that it would lead to the risk of consumers confusion. The Board also noted that the clientele to which those products are directed differs. The decision is not final and is not binding.
Adidas Am., Inc. v. Payless Shoesource, Inc., 3:01-cv-01655 (D. Or. Nov. 8, 2001). $305 million judgment. The issue was a trade mark infringement of 3 stripes. So, that’s more than $100m per stripe as Marty Schwimmer has noted. There are some documents related to this case at Marty’s website too. Adidas is very protective when it comes to this sign/mark. As an example you may read cases that were brought before The Court of Justice of the European Communities. Case C-102/07, adidas and adidas Benelux.
First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the requirement of availability cannot be taken into account in the assessment of the scope of the exclusive rights of the proprietor of a trade mark, except in so far as the limitation of the effects of the trade mark defined in Article 6(1)(b) of the Directive applies.
C-408/01, Adidas-Salomon AG and Adidas Benelux BV v. Fitnessworld Trading Ltd., OJ C 304, 13.12.2003, p. 5.
1. A Member State, where it exercises the option provided by Article 5(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, is bound to grant the specific protection in question in cases of use by a third party of a later mark or sign which is identical with or similar to the registered mark with a reputation, both in relation to goods or services which are not similar and in relation to goods or services which are identical with or similar to those covered by that mark.
2. The protection conferred by Article 5(2) of Directive 89/104 is not conditional on a finding of a degree of similarity between the mark with a reputation and the sign such that there exists a likelihood of confusion between them on the part of the relevant section of the public. It is sufficient for the degree of similarity between the mark with a reputation and the sign to have the effect that the relevant section of the public establishes a link between the sign and the mark.
3. The fact that a sign is viewed as an embellishment by the relevant section of the public is not, in itself, an obstacle to the protection conferred by Article 5(2) of Directive 89/104 where the degree of similarity is none the less such that the relevant section of the public establishes a link between the sign and the mark. By contrast, where, according to a finding of fact by the national court, the relevant section of the public views the sign purely as an embellishment, it necessarily does not establish any link with a registered mark, with the result that one of the conditions of the protection conferred by Article 5(2) of Directive 89/104 is then not satisfied.
Well, what can I say? Such marks and sign will always bring public controversy. I can unmodestly recommend you my post titled “Non-traditional trademarks in Polish case law” and “Reclaim Magenta“.
I started an academic platform called lawinit.com together with dr Wojciech Wiewiórowski and thanks to great help of Marcin Sochacki and Marcin Czerwiński. We think about English version too so if you are interested in such academic cooperation then you are warmly welcomed. Meanwhile, among other things there are great translations of German courts judgments provided by Justyna Kurek.