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.