Polish IP & IT law » 2009

Archive for: March, 2009

My history, my personal data

March 30th, 2009, Tomasz Rychlicki

There is a really fresh judgment of the Voivodeship Administrative Court in Warsaw of 3 March 2009, case file II SA/Wa 1495/08 regarding the protection of personal data and providing and operating online services such as websites about users’ classmates.

It is therefore assumed that in accordance with article 6(2) of the Polish Act of 29 August 1997 on the Protection of Personal Data (in Polish: Ustawa o ochronie danych osobowych) not only information on the current situation of an individual decide whether we are dealing with personal data, but also information relating to what one did and who one was in the past. It means that such data are protected under the Act on Protection of Personal Data.

See also my posts entitled “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Personal rights, case II CSK 539/07

March 27th, 2009, Tomasz Rychlicki

QXL Poland sp. z o.o. is the owner of the allegro.pl auction website which removed the user account of a person (Cezary O.) using the nicknames CezCez, 2cez, 2xcez and espia. The company presented different reasons for its decision to remove the account and tried to justify such action by putting various statements about CezCez on its forum website “Cafe Nowe Allegro”. CezCez did not agree with QXL’s statements and sued. The court of first instance agreed with Cezary O.’s arguments and ruled that QXL Poland make a statement of apology as follows

Allegro.pl wishes to apologize to CezCez for using comments by one of its employees which publicly appeared on the New Cafe Allegro on 17 January 2003,– wording that implied CezCez was dishonest, he lies, he is selfish and that he pursues his own self-interest. These actions and comments affected the good name of CezCez, which was not the intention of QXP Poland.

The above statement was to be published on the Allegro.pl website but both parties appealed. The Appellate Court in Lodz did not share the conclusions of the court of first instance that the username (a nickname) used in internet services is personal right/interests (i.e. intangible personal property) eligible for protection under arts 23 and 24 of 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 23
The personal interests of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.

Article 24
§ 1 The person whose personal rights are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.
§ 2 If as the result of a breach of personal rights one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.

The Appellate Court did not agree with the arguments that the user name (a nickname) has parallels with a pseudonym. The case went to the highest court in a further appeal as a cassation complaint. The Supreme Court of Republic of Poland in a judgment of 11 MArch 2008, case file II CSK 539/07, dismissed the case for procedural reasons. However, the SC did not agree with conclusion of the Appellate Court with regard to protection of nicknames or usernames in the digital environment.

The court noted that a username fulfils a variety of functions. First, the creation of a username is a prerequisite to registering on the allegro.pl website in order to obtain its own account and so participate in auctions. A person using such a nickname may be a buyer or a seller. Secondly, a username allows a person to log into Allegro.pl website. In the process of logging in, the user is given a pair of identifiers, such as a username and password. Thirdly, the username/nickname identifies the individual in question in the online environment, in this particular case, in the environment of people using Allegro.pl services.

The individual is therefore recognised as a user using a specific nickname. The Supreme Court could not agree with the position of Court of Appeal that the nickname is purely a technical issue used to personalise the operation. On the contrary it argued, the username/nickname defines and characterises the person who uses such an auction site, bids on it, is the party to a contract of sale, issues comments or is involved in correspondence with other users.

The court found that

In some cases, participations in the auction website by a user using a specific name can be a source of information for other participants who know that this user typically takes part in an auction of that type, bids only to a certain amount of money, only on certain days, in a certain way, does not compete with users using specific names, that the user is honest, efficient and immediately carries out transactions, etc.”
The Supreme Court also ruled that a username identifies a specific natural person. A username consists of a series of signs and letters, and there are no counter-indications that a person who created his or her own username could use his or her own name, surname, artistic pseudonym, pen name, or alias or it could even be a natural person who is the agent and uses the company name (the firm) under which it operates its business.

It appeared to the court that in the assumption of a username by a person rather than his or her own name, the pseudonym (which has so far been used as an example in artistic activities) is meant as the assumption of a nickname in order to allow for individualisation of that particular person. The word “nickname” comes from the Greek language (“pseudonymos”–bearing a false name, falsely named) and it means a first name, last name or another name which someone uses to conceal his real name or surname.

The court found irrelevant the motivation of a person who takes a nickname which is used as a pseudonym only in the “internet environment” or that the nickname may only be associated with the activities of that particular person carried out within the scope of services offered by Allegro.pl, since it may also have a broader meaning and go beyond the services of Allegro.pl. Consequently, the court noted that a username is subject to legal protection on the same basis on which protection is granted for any name, pseudonym or firm name, under which a person has established its business (whether it is a company name or that of a private person). At the same time, the court found no reason to treat a username/nickname as a separate personal right.

Poland: higher fees for trade marks

March 19th, 2009, Tomasz Rychlicki

The regulation of the Polish Cabinet dated 26 February 2008 changing the regulation on fees paid for protection of inventions, utility models, industrial designs, trade marks, geological indications and topographies of integrated circuits will come into force on 26 March 2008.

The offical fee for a paper trade mark application (up to 3 classes) will be 550 PLN, the fee for an electronic trade mark’s application (up to 3 classes) will be 500. The official fee for the opposition of trade mark application will be 1000 PLN.

In a short earlier post entitled “Poland: Minimum rates“, I’ve informed my readers about official rates regarding trade mark attorney’s minimum fees in Poland.

The exchange rate used in this post as an example for P.T. readers is based on Google’s service for which all foreign currency rates are provided by Citibank N.A..

Categories: Class46 post | Polish Act on Industrial Property Law | Polish Patent Office | Polish law | trademark law.

Poland: profession name not registrable as a trade mark

March 19th, 2009, Tomasz Rychlicki

On October 25 1995 a Polish entrepreneur Tomasz Bednarski conducting business under the company name Optyk Tomek in Warsaw applied for registration of a word trade mark Optometrysta (“optometrist”) in class 42 for services such as examination of eye refraction, selection of spectacles for individual needs, selection of contact lenses for individual needs, selection of telescopic spectacles for individual needs. On August 4 1998, the trade mark was registered by the Polish Patent Office under number R-104424.

In February 2007, the President of the Executive Board of the Polish Society of Optometry and Optics informed the Polish Patent Office that the word optometrysta is a common profession name, used at least since 1983. In March 2007, the request for invalidation of the trade mark was filed by the President of the Patent Office, based on claims that the registration was granted against Article 7(2) 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 later amendments.

The only signs that shall be eligible for registration as trade marks are those that have sufficient distinctiveness in ordinary economic activity.
A sign shall not have sufficient distinctiveness if it simply constitutes a generic designation of the product, if it simply makes a statement as to the properties, quality, number, amount, weight, price, purpose, manufacturing process, time or place of production, composition, function or usefulness of the goods or any similar information that does not enable the origin of the goods to be determined.

This was in connection with Article 167(2) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, 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.

The General Public Prosecutor of the Republic of Poland or the President of the Patent Office may, in the public interest, request that the right of protection for a trade mark be invalidated or intervene in an invalidation action already pending.

According to the President of the Polish Patent Office, the trade mark Optometrysta is simply the name of a profession. The World Council of Optometry defines optometry as

a healthcare profession that is autonomous, educated, and regulated (licensed/registered), and optometrists are the primary healthcare practitioners of the eye and visual system who provide comprehensive eye and vision care, which includes refraction and dispensing, detection/diagnosis and management of disease in the eye, and the rehabilitation of conditions of the visual system.

In 1999 the profession was entered on to the list of professions performed in Poland, which is kept by the Ministry of Labour and the President of the Central Statistics Office.

During the hearings at the Patent Office, the owner of the mark declared that he performed the services under the mark, and according to his knowledge, the mark had not been earlier registered in the name of any other party. In view of this, he decided to apply for registration of the mark with the aim of obtaining financial benefit.

The Adjudicative Board of the Polish Patent Office, by virtue of its decision of May 30 2007, case file Sp 141/07, invalidated the trade mark right. The Patent Office argued that before the date of filing an application for registration of the sign as a trade mark, it functioned as the name of a profession in the optical industry. At the date of invalidation, the subject mark does not have any distinctive character, and therefore no one should be granted the exclusive protection right for the mark, and at the same time a monopoly thereto.

Bednarski lodged a complaint with the Voivodeship Administrative Court (VAC) in Warsaw (decisions of the Patent Office are subject to complaints with the Administrative Court). He questioned procedural aspects of the Patent Office’s decision, and argued that the Patent Office should base the request for invalidation on article 31 of the TMA:

The request for annulment of a right deriving from registration of a trade mark may be filed within five years of the date of registration. After the expiry of that period, such request may only be filed in respect of an owner who has obtained a registration in bad faith.

According to Bednarski, the term for filing this request terminated in 2004, and the Patent Office had not made reference to bad faith action in order to file the request for invalidation after expiry of this term. The District Administrative Court rejected the trade mark owner’s arguments. The Court, in its decision of December 13 2007, case file VI SA/Wa 1708/07, held that the five-year statutory period for filing the request for invalidation had not expired before the entry into force of the new Law on Industrial Property, which provided different regulations and opened new opportunities to file the request for invalidation. These regulations are set forth under Chapter 6 of the Law on Industrial Property entitled “Invalidation and Lapse of the Right of Protection for a Trade Mark”. Apart from exceptional circumstances specified therein, the legislature has waived the deadline for requesting invalidation proceedings. As of August 22 2001, no time limit will restrict the possibility of requesting invalidation of the right of protection. Thus, after August 22 2002, the President of the Patent Office, acting in the public interest, may at any time request the invalidation of the right of protection that was granted against the law.

Bednarski filed a cassation complaint with the Supreme Administrative Court. However his motion was dismissed by virtue of a decision of the Supreme Administrative Court of January 20 2009, case file II GSK 642/08. The decision is final.

Do not argue about copyrights and trade marks or you land in jail

March 14th, 2009, Tomasz Rychlicki

Indeks 73 is a new initiative created and developed on the national level in Poland at the beginning of 2008 by the people of cultural professions. Our aim is to protect freedom of artistic expression and scientific researches guaranteed by the constitution
(…)
Freedom of artistic creation and scientific research, as well as free access to cultural goods, is guaranteed in Article 73 of the Constitution of the Republic of Poland, and on the international level – in the Universal Declaration of Human Rights (article 27).

This was for the begining. You may find more interesting news at indeks73.pl website.

On 10 March, Waldemar Tatarczuk (artist, performer) has sent an alert to the net about the arrest of Zygmunt Piotrowski. Piotrowski is a recognized theoretician on individual concepts of avant-garde art, he combines the art with social and political reality. The artist works at the crossroads of philosophy, visual arts and science (he developed many technical patents).

Indeks 73 learned that Piotrowski’s detention was caused by his refusal to pay the court’s ordered fine to Lew Rywin. Piotrowski argued that his property will not be disclosed to such criminals as Rywin. Of course, the court did not agree with his statement and at the request of Heritage Films (owned by Lech Rywin) ordered Zygmunt Piotrowski to serve 8 days of detention. He should be released on 13 March 2009.

The dispute between Piotrowski and Lech Rywin (Heritage Films) is pending for more than ten years. It has started as a copyright dispute regarding Zygmunt Piotrowski’s creation of word-figurative logotype “Heritage”. Piotrowski created this logo for the Polish company Heritage Promotion of Music and Art. It presented the state court porch of Elizabeth and Christopher Penderecki with “heritage” word included. In 1991, Lew Rywin used this logotype to build the image of the new company, Heritage Films. Zygmunt Piotrowski has brought a copyright infringement case and won. The court’s judgment has forced the Heritage Films company to remove the sign.

Update on March 14, 2009.
It was late when I did the post so I forgot to add something important. Indeks 73 did not learn what was the exact reason that Piotrowski was obliged to pay a fine for Heritage Films.

And as regards courts’ judgments about trade marks including “heritage” word, the Supreme Administrative Court of the Republic of Poland (SAC) has issued two opinions. I have no specific information about civil courts’ rulings. The SAC in a judgment of 14 December 2001, case file II SA 3446/01, clearly ruled.

The English word “heritage” is not a generic term for the services it was registered for, nor does it inform about its properties, quality or usefulness. Therefore “heritage” word can be used as a trade mark.

Just to remind you. Judgments of the Court of Justice of the EC in case C-3/03 P, Matratzen Concord GmbH vs. Office for Harmonisation in the Internal Market (Trade Marks and Designs), [2004] E.C.R. I-3657 and C-421/04, Matratzen Concord AG vs. Hukla Germany SA, [2006] E.C.R. I-2303, have been issued couple of years later. ;)

One may say, that the SAC in a judgment of 12 March 2003, case file II SA 1867/02, provided very obvious holding.

In accordance with the general rules, in the event of a collision between company name (the firm) and trade mark that has been registered with the “later precedence”, the priority shall be given to the right that existed earlier.

Extortion or Copyright Levies?

March 10th, 2009, Tomasz Rychlicki

The Polish newspaper Rzeczpospolita published a recent article entitled “Authors rights contra the presumption of innocence“. It concerns a case between Polish company Euroimpex (one of the largest importers of photocopying equipment) and KOPIPOL (a collecting society) that was argued before the Court of Appeal in Wrocław. The Court asked the Polish Constitutional Tribunal to issue an opinion regarding legal questions and the interpretation of constitutionality of article 20(1)(ii) of of Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with later amendments.

1. The producers and importers of tape recorders, video recorders and other similar apparatus, or blank material for the recording of works with the aid of such apparatus for personal and private use, and also of reprographic apparatus shall be obliged to pay, for the benefit of the creators and performers of the said works and of the producers of phonograms and videograms, fees in an amount not exceeding 3% of the selling price of the said apparatus and material.

ii. The amount of the fees referred to in paragraph 1 shall accrue:
(1) to the creators for 50%,
(2) to the performers for 25%,

The money goes to two Polish collective societies which should transfer them to creators and publishers.

This reminds me about really funny story that happened to my friend. Piotr Waglowski has sent a letter to one of such organizations asking about the money he should receive for being an author and for publishing a book and a website. You may ask what was so hilarious about the answer he has received from KOPIPOL?

The fees and salaries collected by us (with a large resistance of those obliged to bear them) on behalf of the creators are relatively low. Given the very large number of entities qualified there is a risk of atomization of remuneration payable to entitled individuals.

All creators are equal, but some creators are more equal than others.

Poland: ASPIRIN v PLUSPIRYNA

March 4th, 2009, Tomasz Rychlicki

On 4 November 2005, the Polish company Zakłady Farmaceutyczne Polpharma S.A. from Starogard Gdański applied to register the word trade mark PLUSPIRYNA in class 5 for pharmaceuticals products. On 21 July 2006 the PPO issued a positive decision and registered this trade mark (R-175822).

The German company Bayer Aktiengesellschaft from Leverkusen filed a request to invalidate the right of protection. The request was based on article 131(2)(i) and article 132(2)(ii) and (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.

Article 131(2)(i)
2. A right of protection shall not be granted for a sign, if:
(i) it has been applied for protection with the Patent Office in bad faith,

Article 132(2)(ii) and (iii)
2. A right of protection for a trade mark shall not be granted, if the trade mark is:
(ii) a trade mark which, before the date according to which priority to obtain a right of protection is determined, has been well-known and used as a trade mark in respect of the goods of another party,
(iii) a trade mark earlier registered in the Republic of Poland, whose registration has terminated, provided that an interval between the date of lapse of the right of protection for the trade mark and the date on which a similar trade mark has been applied for by another party, is, subject to Article 133, no longer than two years.

Bayer presented its earlier rights of protection for ASPIRIN R-41042 trade mark, which was applied for in the Republic of Poland on 20 June 1958, in class 5 for pharmaceutical preparations. Bayer alleged that Polpharma’s mark was confusingly similar to ASPIRIN and that PLUSPIRYNA is build on the reputation of Bayer’s trade mark. The disputed trade mark includes “pirin” component which in its overall assessment makes it similar to the ASPIRIN trade mark and it also weakens its reputation. Bayer has also registered other trade marks such as ASPIRIN-C R-105171, ASPIRIN R-105170 – applied for on 18 January 1994, these signs were registered on 8 September 1998 and ASPIRIN R-94326 – registered on 26 February 1997, in class 5 for goods such as medicines, pharmaceutical preparations, chemical proudcts for health care.

Polpharma argued that it has been registered a lot of trade marks including the “piryn” element. Although ASPIRIN trade mark has been applied to register in Poland in 1958, but for many years products bearing this sign were not available on the market in general, only in Pewex and Baltona shops – these two types of shops operated in the communist Poland selling otherwise unobtainable Western goods in exchange for Western currencies. Polpharma provided a whole series of trade marks that include “piryna” element – a well-known word mark POLPIRYNA R-48888 protected since 1969, and available on the Polish market since 1955, word trade mark POLOPIRYNA C R-55084 protected since 1976, the word trade mark CALCIPIRYNA R-96016 protected since 1994 and the word trade mark Etopiryna R-59876 protected since 1983.

The Polish Patent Office did not agree with Bayer’s arguments and dismissed the invalidation request in its decision of 3 February 2009, case file Sp. 564/07.