Polish IP & IT law » 2008

Archive for: July, 2008

Personal rights, case I ACa 385/2006

July 31st, 2008, Tomasz Rychlicki

Update on Februrary 27, 2010.
I reported on a final judgment in Justyna Steczkowska’s case in my post entitled “Personal rights, case I ACa 1176/09“.

My post that was written in Polish language is too long and probably boring for most of you. It concerns Justyna Steczkowska’s naked pictures taken during her holiday at Turkish Rivera and being published by “Super Express”, which is one of many Polish tabliods. I also wrote about some comments that were posted by Polish lawyers regarding the right of privacy issue and I wanted to write a comparative note about American and Polish legal systems but I am way too busy for such undertaking. I can only tell you that Maciej Ślusarek, an attorney representing Justyna Steczkowska, will have easier case in Poland as opposed to the US legal reality. Mr. Ślusarek previously won a case against “Super Express” publisher and editor-in-chief. It was a very important judgment of the Appellate Court in Warsaw of 29 September 2006, case file I ACa 385/2006. Mr. Ślusarek represented another Polish singer Edyta Górniak. The Court held that there is a need to distinguish the persons carrying out the public functions, if a person due to the character of those functions might be subjected to public control and the openness of their life is justified by the important society interest, from the commonly known persons, who are not subjected to such intense public control. The distinction included in court’s ruling is of course of great importance for protection limitations established for such persons.

The protection of personal image/publicity rights is provided in the Polish Civil Code in article 23. This provision outlines the personal image as one of the personal property/interests – an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image afforded by provisions of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with later amendments.

Article 81.
1. The dissemination of an image shall require the permission of the person presented in that image. Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing.
2. The permission shall not be required for the dissemination of the image:
1) of a commonly known person, if such image has been made in connection with his/her performance of public functions and, in particular, political, social or professional functions,
2) of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event.
(…)
Article 83.
The provisions of Article 78, paragraph 1 shall apply respectively to claims brought due to the dissemination of the image of the person presented in it and the dissemination of correspondence without the required permission of the person to whom it was addressed; such claims may not be asserted after the lapse of twenty years from the death of that person.

Additional protection is also provided in the Act of 26 January 1984 on Press Law, the Criminal Code and the Act of 29 August 1997 on Protection of Personal Data. The protection of privacy and publicity may also derive from the Constitution of the Republic of Poland of 2 April 1997.

Article 47
Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.
(…)
Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

And, of course, from the European Convention on Human Rights of 4 November 1950.

Seek, and ye shall find

July 31st, 2008, Tomasz Rychlicki

The below citation is taken from the article available at slashdot.org website. I think it will perfectly fit into legal research category.

“The politicization of Bush’s Justice Department, which this week was officially determined to be illegal, has a funny side too. Sometime in 2005-2006, White House Liaison Jan Williams attended a seminar on LexisNexis searches, and wrote one herself. When she left, she passed it on to her successor Monica Goodling in an email. Justin Mason, author of SpamAssassin, is skeptical about its accuracy:
[First name of a candidate]! and pre/2 [last name of a candidate] w/7 bush or gore or republican!
or democrat! or charg! or accus! or criticiz! or blam! or defend! or iran contra or clinton
or spotted owl or florida recount or sex! or controvers! or racis! or fraud! or investigat!
or bankrupt! or layoff! or downsiz! or PNTR or NAFTA or outsourc! or indict! or enron
or kerry or iraq or wmd! or arrest! or intox! or fired or sex! or racis! or intox! or slur!
or arrest! or fired or controvers! or abortion! or gay! or homosexual! or gun! or firearm!
Needless to say, when asked about it, Williams first said she didn’t remember ever seeing it, then said she’d used an edited version just once. LexisNexis records show she used it, as shown, 25 times.” Note that ’sex!’ appears twice in the query. Must be VERY important.

Categories: democracy | legal research.

Poland: proving the fame of a trade mark

July 30th, 2008, Tomasz Rychlicki

The Polish Supreme Administrative Court (SAC) in its recent judgment of 9 May 2008, case file II GSK 506/07, gave an interpretation and clarified what is a famous (renown or reputed) trade mark.

This case concerned a cassation complaint brought from the judgment of the Voivodeship Administrative Court (VAC) in Warsaw of 4 September 2007, case file VI SA/Wa 2195/06, regarding a decision of the Polish Patent Office (PPO) in case of BOSS LIGHTS trade mark R-136520. Reemtsma Cigarettenfabriken GmbH from Hamburg had registered this trade mark in class 34 for goods such as tobacco, tobacco products, smokers’ articles, cigarettes, cigarillos, matches. The owner of the following trade marks: BOSS R-66417, registered for goods in classes 9, 14, 18, 25 and 28, HUGO BOSS R-66418, registered for goods in classes 9, 14, 18, 25 and 34, BOSS HUGO BOSS R-156696, registered for goods in class 34 and word-figurative mark BOSS R-82792 filed before the Polish Patent Office a request for cancellation of the right of protection to BOSS LIGHTS trade mark. The PPO found that there was a likelihood of consumer confusion with reference to the origin of goods in the market turnover. The PPO also held that the registration of the BOSS LIGHTS trade mark violated the prior rights of HUGO BOSS Trade Mark Management GmbH & Co. KG, including its company name.

Reemtsma Cigarettenfabriken appealed to the Voivodeship Administrative Court in Warsaw. The Court sided with the PPO’s decision. Reemtsma Cigarettenfabriken referred to the last instance and it has filed a cassation complaint before the Polish Supreme Administrative Court. However, The SAC agreed with the court of first instance findings that famous trade mark has a reputation and that, besides its recognition, it must also be characterized by the following characteristics:

market share/participation (both quantity and value of sold goods),
range and long-lasting of an advertisment of the product bearing a trade mark,
territorial and temporal range of use,
licences granted for trade mark use, quality of goods bearing a trade mark,
value of a given sign in assessment of an independent financial institution,
size and extent of expenditures spent on promotion of a mark,
the relationship on prices of substitute goods,
if (and to what extent) the mark is used by third party.

July 23rd, 2008, Tomasz Rychlicki

I would like to comment on the whole issue in one sentence: better protect then sue. I know I shouldn’t issue statements like that because being a lawyer I am obliged to write more sophisticated. Well, it looks like I am not a good lawyer. Ad rem.

Details of how to copy the Oyster cards used on London’s transport network can be published, a Dutch judge has ruled.

More details in the article available at bbc.co.uk website, and I think that a quotation of Bruce Schneier is the best punchline.

As bad as the damage is from publishing – and there probably will be some – the damage is much, much worse by not disclosing.

Categories: computer law | trade secrets law.

Who “steals” from whom?

July 21st, 2008, Tomasz Rychlicki

Very interesting and funny situation happened.

“Piracy is BAD” proclaims every copyright dependent industry lobby group. “Downloading is stealing” is another popular one. How about “downloads are a lost sale”? Ubisoft clearly didn’t believe that last one, as they distributed a no-cd patch from the scene group RELOADED as a fix for one of their games.

More details available at www.torrentfreak.com and www.forums.ubi.com websites. I am not sure if such warez release was preed. If someone of my readers has more information please let me know.

Categories: computer crime | copyright law | digital economy.

Commercial propaganda

July 17th, 2008, Tomasz Rychlicki

I read about this story from the post available at adkuchni.blox.pl website which is devoted to marketing stories.

I found a country without advertisments! It’s Cuba. Only billboards, posters I saw during my trip were governmental expression of revolutionary ideas: Fidel in exchange with Che Guevara and Chavez.

And how should I explain to a Cuban guy I met (my Spanish is fading): ¿donde trabajo? – where do I work?

It went like that:

Cuban guy: ¿Donde trabajas? / Where do you work?

I: En la agencia de publicidad / In advertising agency

C: ¿Donde? / where?

I: Agencia de publicidad / In advertising agency

C: ¿Que es eso? / What is this?

After short explaination I heard from him:

C: Si! Es como la agencia de propaganda comercial! / I get it! It’s like: propaganda agency but for commercial.

You’ll also find a link to flickr.com website in comments. It presents many pictures of São Paulo City without any advertising.

Categories: advertising law | brands | patent law.

“Borrowed” from

July 17th, 2008, Tomasz Rychlicki

There is a story described at ecogeek.org website on “borrowing” of some logo. Paweł Tkaczyk posted a short note about a similar situation in Poland. If someone of you knows about any of such “borrowings” or “similarities”, then I’d be happy to read about it. Trust me, I’m not going to sue anyone. I just need it for, let’s say “scientific” purposes. :)

Categories: Polish law | US law | brands | copyright law | trademark law.

Another interesting judgment

July 15th, 2008, Tomasz Rychlicki

Sometime ago I did a post entitled “It’s going to be interesting decision“. And this decision was issued yesterday.

Blizzard owns a valid copyright in the game client software, Blizzard has granted a limited license for WoW players to use the software, use of the software with Glider falls outside the scope of the license established in section 4 of the TOU, use of Glider includes copying to RAM within the meaning of section 106 of the Copyright Act, users of WoW and Glider are not entitled to a section 117 defense, and Glider users therefore infringe Blizzard’s copyright. MDY does not dispute that the other requirements for contributory and vicarious copyright infringement are met, nor has MDY established a misuse defense. The Court accordingly will grant summary judgment in favor of Blizzard with respect to liability on the contributory and vicarious copyright infringement claims in Counts II and III.

Categories: US law | contract law | copyright law.

wins

July 15th, 2008, Tomasz Rychlicki

Tiffany (NJ) Inc. v. eBay Inc., No 04 Civ. 4607 (RJS) (S.D.N.Y July 14, 2008). Tiffany’s motion was rejected. There will be an appeal no dubt. Eric Goldman published some comments and Marty Schwimmer has added judgment’s text to Scribd.

Categories: US law | computer law | trademark law.

Open WiFi ≠ copyright infringement

July 11th, 2008, Tomasz Rychlicki

You will find more details regarding my laconic topic in the article available at www.arstechnica.com website. Logic won over lobby. Very good.

Categories: computer law | contract law | legal regulations on computers networks | telecommunication law.