Archive for: February, 2009

Copyright law, case V CSK 337/08

February 28th, 2009, Tomasz Rychlicki

The Supreme Court in its judgment of 27 February 2009, case file V CSK 337/08 ruled that the specification of essential terms of the contract as defined by the public procurement system can be deemed as copyrighted work.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Personal rights, case III CZP 17/86

February 25th, 2009, Tomasz Rychlicki

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.

Criminal law, case III KK 234/07

February 20th, 2009, Tomasz Rychlicki

The Supreme Court Criminal Chamber in its judgment of 7 May 2008 case file III KK 234/07 held that the freedom of the press and other means of social communication that are guaranteed in the Article 14 of the Polish Constitution, also include mass media communication, as referred to in 216 § 2 i 212 § 2 of the Criminal Code. The Court noted that Internet is deemed as a means of mass communication, whereby the offender may commit both the defamation and insult. The case concerned defamation via the Internet. The investigation established only a computer that was used to commit this type of offence. The Court observed that it is not possible to automatically connect a computer with a perpetrator. The Court ruled that there is a possibility to establish and determine the IP address to identify the owner of a specific computer, which has been used for defamatory or insulting actions, but there is no possibility to indicate who used such computer, if adequate evidence was not collected, and if the owner does not indicate the person who committed the offence. Sharing a computer with a third person is not a wrongful act. It is impossible in the current state of the law to recognize that the mere act of sharing of a computer with a third person results in criminal liability of its owner.

Trade mark law, case Sp. 213/06

February 19th, 2009, Tomasz Rychlicki

The German company Berentzen Brennereien GmbH from Haselunnein Germany has requested invalidation of the word trade mark Pushkin R-110616 registered for Belvedere Company in class 33 for alcohol beverages. The request was based on articles 6 and 8(i) of the old Polish Trade Mark Act – TMA – (in Polish: Ustawa o znakach towarowych) of 31 January 1985, Journal of Laws (Dziennik Ustaw) No 5, item 15, with subsequent amendments.

(1) A trademark shall be registrable on behalf of a specific enterprise, but only in respect of goods falling within its field of economic activity.
(2) The registration of a trademark for specific goods shall not prevent registration of other trademarks on behalf of the same enterprise in respect of the same or different goods falling within its field of economic activity.
(3) The registration of a trademark for specific goods shall not prevent registration of the same trademark on behalf of the same enterprise in respect of other goods falling within its field of economic activity.

Article 8(i)
A trade mark shall not be registrable if:
(i) it is contrary to law or to the principles of social coexistence;

The German company alleged that the mark has been submitted by entrepreneur who had no licence to operate as an alcohol dealer but it was engaged in exports of alcohol. The disputed trade mark was then transferred to Belvedere company. The German company also claimed that the applicant was acting in bad faith because it was aware of the fact that such a sign exists on the same competitive Western markets. The PPO dismissed the request in its decision of 20 January 2009 case act signature Sp. 213/06. The PPO did not agree that trade mark registration was done against provisions of article 6 because, according to the judgment of the Supreme Administrative Court of 16 September 2004, case file GSK 774/04, the export of alcohol from the country did not require a licence.

Trade mark law, case Sp. 421/07

February 14th, 2009, Tomasz Rychlicki

On 18 April 2002 Polish entrepreneur Zaklady Chemiczne EMICHEM Michal Mierzwa from Poznan applied to register the word-figurative trade mark JAX in class 3 for goods such as washing preparations, body and hair care preparations, windshield preparations and washers, car-care preparations, stain removers, softening and bleaching preparations. The Polish Patent Office registered this trade mark R-171570 in its decision of 16 March 2006.

R-171570

Colgate-Palmolive Company, a Delaware corporation, New York (US), filed a request to invalidate the right of protection based on article 132(2)(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 subsequent amendments.

2. A right of protection for a trade mark shall not be granted, if the trade mark:
(ii) is identical or similar to a trade mark for which a right of protection was granted or which has been applied for protection with an earlier priority date (provided that the latter is subsequently granted a right of protection) on behalf of another party for identical or similar goods, if a risk of misleading the public exists, in particular by evoking associations with the earlier mark.

The US company claimed earlier word-figurative trade mark registration AJAX Floral Bouquet R-135207. Colgate-Palmolive argued that there exist a high a risk of misleading the public because the disputed trade marks shared visual, aural and conceptual similarities.

R-135207

The PPO accepted Colgate-Palmolive’s arguments and invalidated JAX trade mark in its decision of 20 February 2009, act signature Sp. 421/07.

Trade mark law, case Sp. 10/08

February 10th, 2009, Tomasz Rychlicki

On 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.

R-174205

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 case file Sp. 10/08, and ordered the French company to supplement its evidence.

Industrial design, case VIII SA/Wa 332/08

February 10th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its 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.

Wzór Przemysłowy 6991

This case concerned the industrial design “Podstawa słupa” (in English: column base), Rp-6991. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Telecommunication law, case I CSK 332/08

February 9th, 2009, Tomasz Rychlicki

The 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.

Trade mark law, VI SA/Wa 1000/08

February 5th, 2009, Tomasz Rychlicki

In the decision of 4 February 2005, the Polish Patent Office granted the right of protection for the word trade mark Glazide in class 5 for goods such as anti-diabetic pharmaceutical preparations, for Farmaceutyczna Spółdzielnia Prac Galena from Wrocław.

Les Laboratoires Servier from France filed a request for invalidation of the right of protection based on articles 129(1)(ii) and 129(2)(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 subsequent amendments.

Article 129(1)(ii)
1. Rights of protection shall not be granted for signs which:
(ii) are devoid of sufficient distinctive character.

Article 129(2)(ii)
(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 filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 31 October 2008 case file VI SA/Wa 1000/08 dismissed it. 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 was filed before the Supreme Administrative Court. See “Trade mark law, case II GSK 214/09“.

Polish case law on advertising of pharmaceuticals

February 1st, 2009, Tomasz Rychlicki

Below you will find a list of judgments and decisions on advertising of pharmaceuticals. You can find a more detailed discussion on each judgment or decision under the link provided with the case file. All judgments and decisions are given in chronological order.

– The judgment of the Voivodeship Administrative Court in Warsaw case file VI SA/ Wa 1136/10.

– The decision of the the Main Pharmaceutical Inspector of 10 March 2010, no. GIF-P-R-450/141-4/ZW/09/10.

– The decision of the the Main Pharmaceutical Inspector of 4 March 2010, no. GIF-P-R-450/147-3/ZW/09/10.

– The decision of the the Main Pharmaceutical Inspector of 6 January 2010, no GIF-P-R-450/126-3/ZW/09/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 11 March 2010, case file VI SA/Wa 2110/09.

– The judgment of the Supreme Administrative Court of 10 March 2010, 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 of the 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 yet final. A cassation complaint may be filed to the Supreme Administrative Court.

– The judgment of the Voivodeship Administrative Court in Warsaw of 3 October 2007 case file VII SA/Wa 1157/07.

– The judgment of the Voivodeship Administrative Court in Warsaw of 29 December 2005 case file I SA/Wa 584/05.

– 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 “Polish regulations on pharmaceutical trade marks“.