The Supreme Court in a judgment of 10 November 1986, case file III CZP 17/86, published in OSNCP 1987, No. 10, item 145, ruled that the circumstances excluding the unlawfulness of an infringement of personal rights/interests include: the exercise of personal rights, the consent of a harmed person. It should be noted, however, that the consent as a condition repealing the illegality, applies if its expression does not affect either existing legislation or the rules of the application of a consent.
Archive for: February, 2009
Personal rights, case III CZP 17/86
February 25th, 2009, Tomasz RychlickiTranslation, anyone?
February 13th, 2009, Tomasz RychlickiThere is no English nor Polish translation available for Advocat General Verica Testenjak’s opinion in case C-5/08, Infopaq International A/S v. Danske Dagblades Forening. Anyone, please help.
Polish case law on domain names
February 12th, 2009, Tomasz RychlickiIn this post I will try to provide P.T. readers with news regarding judgments of Polish courts on domain names. I mostly focus on cases decided in civil proceedings. However, you’ll find some interesting and important judgments decided by other courts. As usually a more detailed discussion of each judgment may be found in the link provided with the case file.
All judgments are presented in the chronological order.
- Order of the District Court in Lódż, I Civil Division of 14 January 2010, case file Ico 203/09.
- Judgment of the Appellate Court in Białystok of 6 May 2008, case file I ACz 364/08.
- Judgment of the Polish Competition and Consumer Protection Court of 26 December 2006, case file XVII AmC 170/05.
- Judgment of the Voivodeship Administrative Court of 30 November 2007, case file II SA/Wa 71/07.
- Judgment of the Appellate Court in Katowice, judgment of 16 June 2006, case file I ACa 272/06.
- Judgment of the District Court in Łódź, X Commercial Division of 22 June 2004, case file X GC 1245/03.
Reaction of consumers
February 11th, 2009, Tomasz RychlickiThere is plenty of news regarding recent “legislative” proposals regarding “tri-strike approach” within the EU. I was wondering if I should call it democratic legislative process but after 3 seconds I decided to use only legislative and as you’ve noticed in parenthesis. After couple of years of watching how the law is made in the EU my feelings are (and my personal statement) that this organization has lost its democratic legitimation long time ago. Anyway, the French(?) or should I call it by the name – the lobbyists, try really hard to ignore the common voice of European Parliament. Even if the Parliament once said NO, they probably think that it is the best method to try again and again. I feel like someone is offending my intelligence and I wonder when people who are tired of such manipulation start to protest on the streets. Meanwhile, one of the Polish ISPs has introduced new rules in its regulations on providing access to the Internet.
§ 5. Terms and Conditions of the Service
2. While using the Service it is prohibited, in particular:
2.1. To download, distribute, or share photos, movies, music, programs and other data in violation of copyrights, intellectual property or other rights of third parties;
According to the Polish law such regulations are an integral part of a contract between an ISP and a consumer. Changes made in this kind of regulations while the contract is in force allow the consumer to quit it. I owe my readers a short explanation regarding downloading. It is not prohibited under the Polish law to download movies, music and other copyrighted stuff (except computer software and databases). Such regulation is afforded in article Article 23 of the Act of 4 February 1994 on Authors rights and Neighboring Rights, Dziennik Ustaw (Journal of Laws) No 24, pos. 83, with later changes.
1. It shall be permitted to use free of charge the work, which has been already disseminated for purposes of private use without the permission of the author.
Now, let’s go back to the Polish ISP. Since couple of days its Warsaw’s offices for customer services are filled with people who want to quit their contracts. There is a short article available at wyhacz.pl website. Action – reaction.
Race for Dakar
February 10th, 2009, Tomasz RychlickiOn 7 November 2002, the Polish company DAKAR from Krasne by/Rzeszów applied for word trade mark registration for DAKAR in class 3 for goods such as preparations for cleaning and maintenance of upholstery and body of a car, cosmetics for cars, in class 27 for goods such as car rugs and also in class 37 for services such as maintenance, repair, overhaul, cleaning, and car tuning. The Polish Patent Office registered this sign (R-174205) in its decision of 6 June 2006. French company (société par action simplifiée) PARIS-DAKAR filed a request for invalidation of the right of protection based on article 132(2)(iii) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No. 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with later amendments.
2. A right of protection for a trade mark shall not be granted, if the trade mark:
(iii) is identical or similar to a renown trademark registered or applied for registration with an earlier priority (provided that the latter is subsequently registered) on behalf of another party for any kind of goods, if it without due cause would bring unfair advantage to the applicant or be detrimental to the distinctive character or the repute of the earlier trademark. The above provision shall apply to well-known trade marks accordingly.
The French company claimed that the PARIS-DAKAR and DAKAR brands are widely known beacause of the world-wide popular rally which has around thirty years of tradition. In PARIS-DAKAR opinion the Polish company applied for trade mark protection knowingly. It works in the cars trade which may causing a risk of association between the registered mark and the French company’s brand and it has been done in order to use its popularity and reputation.
The Polish company argued that, when it applied for trade mark registration, the indication Paris-Dakar was usually associated with the rally, not “Dakar” itself. In addition, there are other trade mark registrations consisting of Dakar word, which means that such sign may function on the market.
On 9 December 2008, the Polish Patent Office postponed the hearing in this case (act signature Sp. 10/08) and ordered the French company to supplement its evidence.
Industrial design, case VIII SA/Wa 332/08
February 10th, 2009, Tomasz RychlickiThe Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 4 February 2009, case file VIII SA/Wa 332/08, ruled that not every method of disclousure of an industrial design is relevant, as it provides the opportunity to familiarize with it to persons acting in a professional manner in the same sector. It must be remembered that in accordance with the views of the legal doctrine and commentators, this possibility must be a real, materially relevant, and therefore it has to occur in circumstances that allow to assume the actual knowledge, which is the result of normal proffesional activity, specialized in the given sector. Therefore, it is not about the mere fact of disclosure of a design, but about whether specific people have actually an opportunity to get acquainted with the design.
This case concerned the industrial design “Podstawa słupa” (in English: column base), Rp-6991.
See also my post entitled “Polish case law on industrial designs“.
Burden of prevention
February 9th, 2009, Tomasz RychlickiThe judgment of the Polish Supreme Court of 5 February 2009, case file I CSK 332/08 has been aptly commented in the title of Rzeczpospolita’s article “It is not allowed to set traps for subscribers“.
Judge Krzysztof Pietrzykowski pointed out that the judgment is also about the prevention, because such cases may still occur. The operator, which benefits from providing customers with high-rate services has an obligations/duty to protect its subscribers against such traps. The principle should be different than the one that was used by TP SA (Telekomunikacja Polska S.A.). The blockade for such services should not be set on the customer’s request, it should be established by default and removed at customer’s request.
Poland: Glazide differs from gliclazidium
February 5th, 2009, Tomasz RychlickiIn the article entitled “Marka jest dla konkretnego farmaceutyku“, the Polish newspaper Rzeczpospolita reports a recent judgment of the Voivodeship Administrative Court (VAC) in Warsaw, case file VI SA/Wa 1000/08. On 29 September 2001, Farmaceutyczna Spółdzielnia Prac Galena from Wroclaw applied for trade mark registration for the word Glazide in class 5 for goods such as anti-diabetic pharmaceutical preparations. The Polish Patent Office (PPO) registered this sign (R-161144) in the decision of 4 February 2005.
Les Laboratoires Servier from France filed a request for invalidation of the right of protection based on article 129(1)(ii) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments
1. Rights of protection shall not be granted for signs which:
(ii) are devoid of sufficient distinctive character.
and article 129(2)(ii) of the IPL
(ii) signs which consist exclusively or mainly of elements which may serve, in trade, to designate the kind, origin, quality, quantity, value, intended purpose, manufacturing process, composition, function or usefulness of the goods.
The French company claimed that the mark Glazide could not distinguish the goods for which it was registered. The mark itself presents information about the treatment of diabetes. The active ingredient (AI) in these kinds of medicine is the substance called gliclazidium (gliclazide). However, the PPO dismissed the request and the French company lodged a complaint before the District Administrative Court in Warsaw. That court held that the disputed mark may lead its recipients (doctors, pharmacists) to make some association with the AI, but it does not mean that it lacks the distinctive character. The sign differs from the AI in phonetic and visual aspects. According to the Court, the Glazide trade mark is fanciful and does not describe a type of drug. The VAC ruled that article 129(2)(ii) clearly states that only signs that are made exclusively of the elements that describe the nature or origin of goods lack distinctive character.
The judgment is not yet final. The cassation complaint may be filed before the Supreme Administrative Court.
Polish case law on advertising of pharmaceuticals
February 1st, 2009, Tomasz RychlickiIn this post I will try to provide my P.T. readers with the review of Polish case law on advertising of pharmaceuticals. A more detailed discussion of each judgment may be found in the link provided with the case file. All judgments are presented in the chronological order.
- The judgment Supreme Administrative Court, case file II GSK 461/09.
- The judgment of the Voivodeship Administrative Court in Warsaw of 18 December 2009, case file VI SA/Wa 1758/09.
- The judgment Supreme Administrative Court of 26 June 2008, case file II GSK 199/08.
- The judgment of the Voivodeship Administrative Court in Warsaw of 17 June 2008, case file VII SA/Wa 556/08. This judgment is not final. The parties have a right to file a cassation complaint to the Supreme Administrative Court.
- The judgment of the of the Supreme Court – Civil Chamber of 2 October 2007, case file II CSK 289/07, published in the Jurisprudence of the Supreme Court, the Civil Chamber (in Polish: Orzecznictwo Sądu Najwyższego Izba Cywilna) of 2008, No 12, item 140, p. 54.
See also my post entitled “Polish regulations on pharmaceutical trade marks“, if you are interested in the review and issues of Polish regulations on medicinal products and trade marks.