The Polish Supreme Court, the Criminal Law Chamber sitting in extended bench of seven Justices, in its judgment of 30 June 2008 case file I KZP 8/08 answered the question, whether the Polish legislator’s intent was to leave acts of purchasing counterfeit goods with impunity, or should such deeds be deemed as fencing according to provisions of Articles 291 and 292 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

This case concerned Małgorzata N. (publication of full personal data is not allowed in Polish criminal proceedings unless otherwise decided by a court) who was accused by the prosecutor of helping to sell clothes which were unlawfully bearing registered trade marks such as Everlast, Adidas, Puma and Nike. The charges were based on the article 291 of the CRC.

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.
2. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

The court of the first instance (Regional Court) has ruled that Małgorzata N. was guilty of buying contested clothes in unfound place and time, and at the same time knowing that those products unlawfully bore registered trade marks. The Court sentenced the defendant for 50 daily rates of fine, each worth 40 PLN. Małgorzata N. appealed. Her attorney argued that the court of the first instance erred in the interpretation of article 291 of CRC which should be only applied in a case of the first purchase as it was decided by the Supreme Court in its judgment of 24 May 2005 case file I KZP 13/05. See “Trade mark law, case I KZP 13/05“. According to defendant’s attorney the Supreme Court’s interpretation excluded Małgorzata N.’s guilt because further turnover of such goods was beyond the scope of penalisation. Article 305(1) was amended of 31 July 2007 to adjust its provisions to every situation of “market turnover”.

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.

The Supreme Court held that any behaviour which is not understood as “introduction to market” as defined in article 305(1) of the IPL (after amendments from 2007) and consisting of further market turnouver of goods bearing counterfeited trade marks is not a misdemeanour defined by article 291 and 292 of the PPC because it does not fulfill a trait of “property obtained by means of a prohibited act”.

Categories: Art. 291 CRC | Art. 292 CRC | Art. 305(1) IPL | case law | counterfeiting | Polish Act on Industrial Property Law | Polish Criminal Code | Polish Regional Court | Polish Supreme Court | trade mark infringement | trademark law.