Polish IP & IT law » 2008

Archive for: August, 2008

Think before requesting removal

August 21st, 2008, Tomasz Rychlicki

Joe Gratz wrote a post about a very interesting judgment in the case Lenz v. Universal Music Corp., No. 07-3783 (N.D. Cal. August 20, 2008), PDF file.

The purpose of Section 512(f) is to prevent the abuse of takedown notices. If copyright owners are immune from liability by virtue of ownership alone, then to a large extent Section 512(f) is superfluous. As Lenz points out, the unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms. A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.” Sen. Rep. No. 105-190 at 2 (1998).

I still wonder why such regulation were not included in analogical provisions of Polish or European Union law.

See this movie on YouTube:

Nemo se ipsum accusare tenetur

August 20th, 2008, Tomasz Rychlicki

In Re Boucher, 2007 WL 4246473 (United States District Court for the District of Vermont, Nov. 29, 2007), PDF file. If you are not interested in the nuances of US law then the title of an article available at news.com website will tell you all about the issue of the aforementioned judgment.

Judge: Man can’t be forced to divulge encryption passphrase.

Couple of years ago I thought that such problem could be solved by simple sentence.

You have the right to remain silent and refuse to answer questions.

But Civil law lawyers will recall old Latin maxim nemo se ipsum accusare tenetur at once. The Polish Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments.

Art. 74. § 1. The defendant has no duty to prove his/her innocence or a duty to provide evidences for his/her disadvantage

Polish patent attorneys – code of ethics

August 20th, 2008, Tomasz Rychlicki

The Rules of Ethics for Patent Attorney Profession, PDF file, in Polish language. This is the unifed text with changes that were passed during IV National Convention of Patent Attorneys of 7 September 2005.

§ 3
Patent attorney shall perform his/her professional duties according to his/her best will and knowledge with
appropriate precision and conscientiousnes, acting in proper moderation and dignity.

Please note that Polish patent attorneys may represent clients in all industrial property law matters (i.e. patents, trademarks, designs, etc.) and there are no specific professions such as trademark agents/attorneys in Poland.

Categories: Polish Act on Patent Attorneys | Polish Chamber of Patent Attorneys | Polish law | Polish patent attorneys.

Industrial design law, case VI SA/Wa 1088/08

August 12th, 2008, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 11 August 2008, case file VI SA/Wa 1088/08, ruled that it is not enough to prove that the design applied for differs from opposed designs, but it must also be proved that it does not contain the characteristics of these designs – further – that it is not in fact the sum of the characteristics of these designs, it is not a combination of opposed designs.

This judgment concerned the industrial design “Wiadro” (in English: bucket), PRZ-1077.

Trade mark law, case Sp. 127/07 and Sp. 254/07

August 11th, 2008, Tomasz Rychlicki

Sokpol Company from Myszków has applied for the word-figurative trade mark “Zloty Potok” (“Golden stream”) in 2001. In 2006, the Polish Patent Office granted the right of protection for this trade mark, R-177610.

R-177610

Zloty Potok Company, which has its headquarters in the village of Złoty Potok, applied for a word-figurative trade mark “Zloty Potok Naturalna Woda Zródlana” in 2005. In 2007, the PPO granted the protection right R-185543. Zloty Potok and Gmina Janów have filed a request for invalidation of the right of protection Sokpol’s trade mark before the Polish Patent Office.

R-185543

The patent attorney representing Zloty Potok argued that Sokpol’s trade mark is misleading because its products did not come from Zloty Potok’s spring from Janów and that such water is only produced by Zloty Potok. Sokpol only received a consent to use this name for its products from the administrative district of Gmina Lesna, where Zloty Potok is located. However the distance between the village of Zloty Potok and Myszków, where Sokpol is based,is around 370 km. This situation, in Zloty Potok representative’s opinion, could also lead to consumers confusion.

The PPO in its decisions case no Sp. 127/07 and Sp. 254/07, has ruled that both “Zloty Potok” trade marks differ because of their rich layout and fancy designs and that there is no risk of consumer confusion as regards to origin of goods. These decisions are not final and are not binding. Both parties may lodge a complaint to the Voivodeship Administrative Court.

Access to public information, case II GSK 459/07

August 7th, 2008, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 20 March 2008 case file II GSK 459/07 held at the begining of judgment’s justification that administrative decisions are public information within the meaning of article 1(1) of the API and may be disclosed, in accordance with 6(1) pt 4 letter a, first tiret of the API. According to the SAC, after completion of the application proceedings, including any inter partes proceedings, article 251 of the IPL will no longer be applicable, and access to case files will be based on the general provisions of the API. Pursuant to article2(2) of the API, the Authority cannot require to prove legitemate or factual interest from the person entitled to a right to public information.

The Court also held that not all documents from the case file should be considered public information. Such nature have only official documents. Pursuant to article 6(2) of the API, an official document within the meaning of the Act is the content of the declaration of will or knowledge, recorded and signed, in any form by a public official under the provisions of the Penal Code, within its competence, that is addressed to another entity or put to the file.

We are equal, but some of us are more equal than others

August 5th, 2008, Tomasz Rychlicki

An interesting judgment in the case Blueport v. U.S., No. 2007-5140 (Fed. Cir. 2008). The United States Court of Appeals for the Federal Circuit upheld an appeal from the Court of Federal Claims, and acknowledged that the US government can not be held responsible for copyright or para-copyright infringement (some people call it also quasi-copyright). It was interpreted based on regulations provided in 28 U.S.C § 1498. One may be suprised by such approach, epsecially knowing that the US government strenuously lobbied for legal protection of TPMs in different international agreements. You may read about that at website. Sui generis hypocrisy? Read some comments available at arstechnica.com website and what Ethan Ackerman has to say about it.