Archive for: October, 2008

Press law, case II SA/Wa 1885/07

October 30th, 2008, Tomasz Rychlicki

The Voivodeship Administrative Court in its order of 30 October 2008 case file II SA/Wa 1885/07 held that the legislature clearly included in the definition of the press all existing and emerging as a result of technical progress, means of mass communication (…), to disseminate periodical publications in print, video, audio, or other distribution technology, and although there are no established views on the recognition of internet communication as the press therefore the content of the provisions of Article 7(2) pt 1 of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets, should, however, allow for the broad understanding of the concept of “press”, as it was also interpreted by the Supreme Court in its order of 27 July 2007 case file IV KK 0174/07. See “Press law, case IV KK 174/07“. The court found that the Internet journals that can be considered as press publications, do not need to have a typical electronic “newspaper” form, similar to that published in the on line system by the big companies with the well-known news titles. Of course, it may also mean that the status of “the press” will get everything that is posted on the Internet, just because it is the result of technological progress and gets a potentially unlimited audience. Whether a publication that is available online has press characteristics should decided by the goal/objective/tasks of such publications. Since the role and task of the press is to disseminate information, the periodicity of communication, the cyclic information of the public of certain facts of social, economic, political, educational, cultural, music, film and art issues, etc., under the title, name, address or even a link it would indicate the purpose pursued by the editors, the publisher and the author of an electronic publication, a website that was created specifically for this purpose.

Trade mark law, case Sp. 470/07

October 29th, 2008, Tomasz Rychlicki

On 25 April 2006, Żywiec Group applied for trade mark protection for the CODE Z-310020 sign for goods in class 32 such as beer. However, during the application proceedings the Polish Patent Office found that there existed an obstacle in the form of earlier international trade mark registration owned by the Albert J. Weber Company from Switzerland which was registered among other things for goods in class 32 such as beer, mineral and carbonated water. Żywiec Group filed a motion for a declaration of the expiry of Albert J. Weber’s trade mark before the Polish Patent Office. The trade mark holder did not defend his registration and hasn’t produced any evidence of its use on the Polish market. The Polish Patent Office in its decision of 10 September 2008 act signature Sp. 470/07, set the date of expiry of protection right for CODE IR-0693581 trade mark on 9 October 2007 – the date a request for declaring the expiration was filed.

Polish patent attorneys, case III CSK 337/07

October 29th, 2008, Tomasz Rychlicki

The Polish Supreme Court in a judgment of 16 October 2004, case file CK III 580/03, published in the Jurisprudence of the Supreme Court, the Civil Chamber (in Polish: Orzecznictwo Sądu Najwyższego Izba Cywilna) of 2005/9/164/109, recognized the scope of representation for matters relating to unfair competition quite narrowly with regard to Polish patent attorneys’ profession.

Fortunately, there is a judgment of the Polish Supreme Court of 13 March 2008, case file III CSK 337/07. The Court was very brief and set a clear rule in one important sentence.

Patent attorney may be a representative in each case relating to unfair competition.

This case was brought before the Supreme Court by Unilever Polska. The company sued Przedsiębiorstwo Produkcji Lodów “Koral” – Józef K. for unfair competition. The defendant ran an advertising lottery promoted under the slogan “million ice creams to win”, which in Unilever’s opinion breached the unfair competition law, because the advertising slogan could mislead customers as to the origin of goods in such a way that it might prompt them to unconsciously purchase the goods promoted by the opposite party. At about the same time Unilever was running a similar advertising campaign. The court of first instance rejected Unilever’s complaint. The Court of Appeal agreed with the court of lower instance and also rejected Unilever’s claim that the plaintiff cannot be represented by a patent attorney in unfair competition proceedings which do not directly concern IP rights.

The Supreme Court provided detailed analysis of Article 2 of the Law on Patent Attorneys. According to the Court, extensive interpretation should be applicable, which means that it would be difficult to rationally evaluate unfair competition cases, due to their diversity, so that one can tell where a patent attorney can and cannot act as an agent. According to the Court, conducting a case against unfair competition in connection with IP matters requires full knowledge about combating unfair competition proceedings. Therefore, it would be against the law to prevent patent attorneys from being involved in all unfair competition proceedings. The Supreme Court’s arguments were also based on the fact that the Paris Convention for the Protection of Industrial Property explicitly defines IP issues in the broadest possible sense. The definition of the protection of industrial property also covers combating unfair competition.

Trade mark law, case II GSK 406/08

October 28th, 2008, Tomasz Rychlicki

The MIŚ company has operated on the Polish market since 1956 in the form of an “industrial plant”, but until 1978, it used the name “Wojewódzki Zwiazek Gminnych Spóldzielni Samopomoc Chlopska-Zaklad Wyrobów Cukierniczych Miś” in Oborniki Śląskie. The complex name was changed to “Spóldzielnia Pracy Produkcyjno Handlowa MIŚ” in 1978 and again to “Zaklady Wyrobów Cukierniczych MIŚ” in 1992.

R-90583

Włodzimierz Miś and Jerzy Miś – “Bracia Miś” (Bear’s brothers) have started their activity in 1989. They use a single word “Miś” (bear) as their company name and produce confectionery since 1993. “Bracia Miś” have applied for the word-figurative trade mark “Mis” in 1992. The Polish Patent Office has granted the protection right in 1995 under the no. R-83022. The Company from Oborniki Slaskie received trade mark protection right for the figurative sign consisting of bear’s head in 1996 under the no. R-90583.

R-83022

Zaklady Wyrobów Cukierniczych MIS filed a request for invalidation of the right of protection of “Bracia Miś” trade mark. The PPO agreed and invalidated the contested trade mark in 2001 for the first time. The case went for the appeal to the Voivodeship Administrative Court in Warsaw which annuled the PPO’s decision. The Administrative court pointed that Polish Patent Office did not properly justified its decision and did not consider judgments of two civil courts that previously ruled in case of “Bracia Miś” and Zaklady Wyrobów Cukierniczych MIŚ as regards similarity of both signs and the use of “Bracia Miś” trade mark as a company name (a short explanation: Polish civil courts decide trade mark infringement cases while administrative courts decide appeals and cassation complaints related to administrative procedure and cases before PPO).

Once again, the PPO invalidated “Bracia Miś” trade mark in 2007. The Office ruled that the registration should not be allowed because it violated personal rights of Zaklady Wyrobów Cukierniczych MIŚ – the right to a company name – which enjoyed a long tradition and reputation. Again, the case went for an appeal to VAC. Trade mark attorney who was representing “Bracia Miś” presented arguments that their products are only sold in company’s owned shops and there is no risk of consumers confusion. The Voivodeship Administrative Court in Warsaw in its judgment of 22 October 2007 case file VI SA/Wa 921/07 did not follow such arguments so the case went to the Polish Supreme Administrative Court as cassation complaint. The SAC agreed with “Bracia Miś” and held that the PPO did not indicate on which evidences the annullement was based in its decision and that the PPO failed to comply with regulations provided in the Code of Administrative Procedure. The VAC by accepting PPO’s decision has failed to comply with administrative proceedings rules which which in consequence was the reason to invalidate VAC’s judgment.

The judgment of the Supreme Administrative Court of 6 October 2008 case file II GSK 406/08 is final and binding. It means that the Voivodeship Court has to annul the Polish Patent Office’s decision from 2007 and order the PPO to reconsider the invalidation of “Bracia Mis” trade mark. See also “Trade mark law, case VI SA/Wa 2258/08“.

Trade mark law, case Sp. 220/08

October 28th, 2008, Tomasz Rychlicki

The Polish Patent Office in its recent decision of 12 September 2008 act signature Sp. 220/08 applied the interpretation issued by the Polish Supreme Administrative Court in judgment of 23 April 2008, case file II GPS 1/08. See also “Trade mark law, case II GPS 1/08“. The PPO had to decide a motion to declare the expiration of TORNADO R-65213 trade mark registered for Reckitt Benkiser N.V. The motion was filed by Henkel KgaA which applied for word trade mark TORNADO Z-339055 on 2 April 2008. The disputed trade mark was applied for on 11 April 1989 in class 3 and the right of protection was granted by the Polish Patent Office on 30 October 1990. However, during the proceedings started by Henkel, the holder did not defend his rights, he did not provide any evidence that the mark was ever used in Poland. The PPO set the expiry date of protection rights of the disputed mark on the date of 31 October 1995. The period of 5 years of non-use of a trade mark was set from the day following the date of registration of that mark.

E-commerce law, case C-298/07

October 20th, 2008, Tomasz Rychlicki

The Court of Justice of European Communities in its judgment of 16 October 2008 in case C-298/07, deutsche internet versicherung, held that Article 5(1)(c) of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) must be interpreted as meaning that a service provider is required to supply to recipients of the service, before the conclusion of a contract with them, in addition to its electronic mail address, other information which allows the service provider to be contacted rapidly and communicated with in a direct and effective manner. That information does not necessarily have to be a telephone number. That information may be in the form of an electronic enquiry template through which the recipients of the service can contact the service provider via the internet, to whom the service provider replies by electronic mail except in situations where a recipient of the service, who, after contacting the service provider electronically, finds himself without access to the electronic network, requests the latter to provide access to another, non-electronic, means of communication.

Trade mark law, case II GSK 332/08

October 14th, 2008, Tomasz Rychlicki

On December 1999, Polish company Top Choice Agata Murawska has applied for trade mark registration for word mark WINNER and word-figurative sign W WINNER in Class 21 for goods such as combs, hair brushes and other products and in Class 29 for rollers. In 2003, The Polish Patent Office granted the right of protection respectively R-148543 and R-148540.

R-148540

The Company Inter Vion SA from Warszawa decided to invalidate aforementioned registrations claiming that those trade marks are the company name (the firm) of Tong-Fong Brush Factory Co. Ltd., from Taiwan which is one of the biggest producers of brushes, combs and mirrors (60 milions of pieces produced in 2000). The WINNER sign, although not registered, was used by Taiwanese company since 1997 on the Polish market. The Company from Taiwan presented an offer involving a series WINNER products to several of Polish companies, including Inter Vion and Top Choice. Since 1998 Top Choise has imported the above-mentioned accessories bearing WINNER trade mark, first by intermediaries, and since 2000 directly from the Taiwanese company. InterVion has signed its first importation contract for WINNER products in 1999. The company has presented first images of these goods in its directory of 1999/2000. During invalidation proceedings before the Polish Patent Office InterVion has alleged that Top Choice, by registering the disputed marks, tried to gain a monopoly on the importation of products.

The PPO invalidated WINNER and W WINNER trade marks in its decision of 4 October 2006, act signatures Sp. 119/05 and Sp. 46/06. The Voivodeship Administrative Court in Warsaw has dismissed Top Choice’s appeal complaints in its judgments of 27 August 2007, case files VI SA/Wa 114/07 and VI SA/Wa 115/07. Top Choice filed a cassation complaint before the Supreme Administrative Court claiming that VAC erred in its findings and violated the administrative procedure rules.

The Supreme Administrative Court in its judgment of 8 October 2008 case file II GSK 332/08 dismissed the cassation and based its arguments on procedural errors included in Top Choice’s complaint which in Court’s opinion lacked proper claims’ construction. However, SAC also held that company who registered other company’s name as a trade mark acted in bad faith which was a sufficient circumstance to declare invalidation of such trade mark by the PPO.

Polish regulations on the protection of trade secrets

October 9th, 2008, Tomasz Rychlicki

I. Definitions
There is no definition of “trade secrets” in Polish law. However, there are regulations that allow for very effective protection.

II. The law
The main sources of binding laws in the Republic of Poland are the Constitution of 2 April 1997, acts passed by the Parliament, ratified international treaties and regulations issued, for example, by the Prime Minister or the Council of Ministers – Polish government. Regulations are issued for the purpose of implementation of acts.

II.A. Unfiar competition
Act on Combating Unfair Competition – CUC – (in Polish: Ustawa o zwalczaniu nieuczciwej konkurencji) of 16 April 1993, Journal of Laws (Dziennik Ustaw) No 47, item 211, with later amendments.

Article 11
An act of unfair competition is the transfer, disclosure or use of third party information, which is company confidential or their receipt from an unauthorised person, if it threatens or violates the interests of the entrepreneur.
2. The provisions of section 1 shall also apply to the person who has been rendering work based on employment contract or another legal relation, for the period of three years from its expiration, unless the contract stipulates otherwise or there is no longer secrecy.
3. The provisions of section 1 shall not apply to the person who, bona fide, by way of a legal operation against payment, acquired the information constituting a business secrecy. The court may oblige the acquirer to the appropriate remuneration for its use, nevertheless for a period not longer than duration of secrecy.
4. Company confidentiality is understood to include the entrepreneur’s technical, technological organisational or other information having commercial value, which is not disclosed to the public to which the entrepreneur has taken the necessary steps to maintain confidentiality.
(…)
Chapter 4
Penal provisions
Article 23.1. Every person, who contrary to her obligation towards the entrepreneur discloses to another person or uses in her own economic activity information which is a business secrecy, shall be liable to the fine, probation or imprisonment up to 2 years, provided it is to the significant detriment of the entrepreneur.
2. The same sanctions shall apply to the person, who having acquired illegally the business secrecy, discloses it to another person or uses in her own economic activity.

It is noteworthy that definition of “company confidentiality” provided in article 11(4) CUC explicitly included “trade secrets” term before amendments in 2002. The CUC protection of “company confidentiality” can be enforced in civil or crminal proceedings. However, regulations afforded in the CUC basically apply only to relations between entrepreneurs (commercial relationships).

II.B. Civil Code
The Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No 16, item 93, with later amendments.

Article 72 [1]. § 1. If during the negotiations, a party has provided information as confidential, the other party is required not to disclose and not to transfer of such information to others and not to use such information for its own purposes, unless the parties otherwise agreed.
§ 2 In the event of failure of performance or improper performance of duties as described in § 1, the entitled person may demand from the other party to undo the damages or to return profits received by the other party.

II.C. Criminal Code
The Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Chapter XXXIII. Crimes against protection of information
(…)
Article 267.
§ 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 2. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.
§ 3. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1 or 2 discloses to another person.
§ 4. The prosecution of the offence specified in § 1 – 3 shall occur on a motion of the injured person.

The mentioned above regulations are the basic. There are some other legal acts that govern specific fields of law. For instance the Act on Acountancy, the Code of Commercial Companies, the Code of Labour, the Act on Banks Law etc.

Computer crimes, case VI K 849/07

October 6th, 2008, Tomasz Rychlicki

On August 11, 2008, the District Court in Glogów (VI Wydzial Grodzki) issued an important ruling case file VI K 849/07, regarding a man accused by the prosecutor of using computers to breach electronic security of a company server and database which allowed him to obtain information not intended for him (personal data) thereby acting to the detriment of the business. Mateusz M. was accused by the prosecutor based on regulations provided in Artice 267 §1 of the Polish Penal Code.

Chapter XXXIII. Crimes against protection of information
(…)
Article 267.
§ 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 2. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.
§ 3. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1 or 2 discloses to another person.
§ 4. The prosecution of the offence specified in § 1 – 3 shall occur on a motion of the injured person.

Mateusz M. had browsed through an internet company website and found that the service contained serious programming errors. He put into the login form a string of signs as follows “‘ or 1 = 1” (and repeated this operation in the password field), which resulted in him being signed/logged into a random user account which allowed him to gain access to several user accounts and their personal data. Mateusz M. decided to exploit this opportunity and made contact with company’s representatives. He informed them that he detected a gap in their website security which allowed him entry to the marketing database of firms owned or connected with the company which operated this online database. In the meantime, Mateusz M. checked other websites and online services created by the same authors of the first website. He has also found that all of them contained the same programming errors because all these websites were built using the same content management system (CMS). Mateusz M. was invited by the company to sign a contract to remove these programming errors. He was also presented with a non-disclosure agreement (NDA), which he signed. However the NDA’s date was set prior to the date he had detected the programming errors and this was used by the company to enable the police, who were co-operating with the company, to arrest Mateusz M.

During the pre-trial proceedings the court’s expert in the field of information technology stated that in his opinion Mateusz M. had used “a form of attack on the company’s database called SQL Injection”; the aim of such an attack is “to extract confidential information from the database and to disrupt its operation”. In the course of the proceedings before the court, the District Court in G#x142og1ow allowed the counsel for the defence to admit evidence of another expert.

The second expert provided the court with an opinion that by introducing a string “‘ or 1 = 1” Mateusz M. had not made any breach of the database, he did not crack any password allowing for access to the database, he did not type or insert any software code and Mateusz M. had not affected the functioning of the database in any way. According to the second expert, Mateusz M. had not removed the database security, and he had not changed the password access, nor did he create any new accounts in the database. In this expert’s opinion, the introduction of the said string by Mateusz M. should be considered as an “SQL Injection” method that was used to circumvent the protection of a database, but that it was permitted by the improper and inadequate protection scheme applied to the database by its creators. The “Sign in” form of the database was designed in such a way that merely typing any string of characters was permitted as an input of data for this type of form. The database authors had not implemented any solutions to verify whether the database stored a user name or password attached to such a string, and as it had not, the database did not generate a proper error message

The court held that the action of the accused failed to comply with the statutory elements of Article 267. In the court’s opinion, breaching security occurs when the offender destroys or removes the security, or when the impact of the offender’s action on the security temporarily removes its protective function. Thus a person who gains access to sensitive information without breaking any security measures is not criminally responsible.

The court ruling acquitted the accused of all the charges based on art.632(2) Polish Criminal Proceedings Code, and the court held that the costs of wrongful prosecution were to be covered by the state. This decision was final and consequently there are pending amendments to the Polish Criminal Code relating to the aforementioned regulations.