The Voivodeship Administrative Court in Opole in its judgment of 4 March 2009, case file I SA/Op 239/08 ruled that when performing commercial transactions over the Internet in an organized and continuous manner, the taxpayer shall register such business and pay the taxes by virtue of performing such activity. Conducting a business with the use of internet networks is associated with the same tax obligations as operating business in the traditional manner, which includes, in particular the pursuit of tax revenue and expenditure accounts in such a way as to determine the income (loss), the tax base and amount of tax due for the fiscal/tax year.
Archive for: May, 2009
Tax law, case I SA/Op 239/08
May 28th, 2009, Tomasz RychlickiTax law, case ILPB2/415-679/08-2/AJ
May 21st, 2009, Tomasz RychlickiPolish citizen bought domain names under which she has established website where the company from United States placed some ads. The owner of the mentioned website receives payments from the US company via PayPal or bank account several times a year. She does not have any invoices or bills. She is not an entrepreneur nor she is providing any online advertising business. The Polish newspaper Rzeczpospolita published an article titled “Jaki PIT od wynajęcia internetowej witryny pod reklamy“, which loosely translates as “What tax for renting website for online advertising” with a question, how and where should such person pay taxes.
According to interpretations issued by the Tax Chamber in Poznań of 13 January 2009 (ILPB2/415-679/08-2/AJ) and the interpretation by the Tax Chamber in Bydgoszcz of 17 March 2008 (ITPB1/415-797/07/PS), the income which is derived from activities performed “in person” for the US company, should be taxed only in the Republic of Poland.
Advertising of pharmaceuticals, case II CSK 289/07
May 7th, 2009, Tomasz RychlickiThis case is a little bit old but I think it’s really worth mentioning to P.T. readers. The Supreme Court of the Republic of Poland decided a case regarding misleading advertising of pharmacetical products. The Court in its judgment of 2 October 2007, case act signature II CSK 289/07 ruled that assessment whether advertising can be deemed as misleading should refer to the model of the average recipient of this kind of advertising – the consumer of advertised products or services.
In this case, it was the average consumer of pharmaceuticals, to which advertising newspapers and leaflets were directed. As the Supreme Court noted in its judgment of 3 December 2003, case act signature I CK 358/02, the model of the average consumer, who is reasonably well informed and reasonably observant and circumspect, is now used widely adopted in the Republic of Poland as it is in the European Union.
However, the model of an average consumer could not be defined and considered in isolation from the conditions of this specific case and the realities concerning recipients of specific products to which the advertising is directed. Therefore, one could not ignore the fact that such consumers are often very ill persons, often with reduced capacity of perception and limited ability of reasonable and critical evaluation, as well as they are often elderly, which is also a significant group of consumers of medicines. These are typically the person more susceptible to suggestion and less critical. These people are targeted by pharmaceutical advertising and, while assessing the possibility of confusion, the characteristics of this kind of audience should be taken into account as a model of the average consumer.
Trade mark law, case II GSK 503/08
May 6th, 2009, Tomasz RychlickiThe legitimate interest to have standing in proceedings before the Polish Patent Office is very interesting issue. Recently the Supreme Administrative Court of the Republic of Poland analyzed this problem in two jugments.
In June 2005, Societe Des Produits Nestle S.A asked the Polish Patent Office to make a decision on the lapse of the right of protection for “3in 1″ R-90234 trade mark owned by “MOKATE” sp. z o.o. from Zory. The request was based on article 28(1) of the old Polish Trade Mark Act – TMA – (in Polish: ustawa o znakach towarowych) of 1985, published in Dziennik Ustaw (Journal of Laws) of 1985 No 5, pos. 15, with later amendments.
The right deriving from registration of a trade mark shall expire if the person entitled has not used the mark within a period of three consecutive years in the Republic of Poland.
The request was also based on article 169(1) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo wlasnosci przemyslowej) of 30 June 2000, published in Dziennik Ustaw (Journal of Laws) of 2001 No 49, pos. 508, consolidated text on 13 June 2003, Dziennik Ustaw No 119, pos. 1117, with later amendments.
1. The right of protection for a trade mark shall also lapse:
(i) on failure to put to genuine use of the registered trade mark for the goods covered by the registration for a period of five successive years after a decision on the grant of a right of protection has been taken, unless serious reasons of non-use thereof exist,
(…)
2. In the cases referred to in paragraph (1), the Patent Office shall make a decision on the lapse of the right of protection for the trade mark at the request of any party having a legitimate interest therein.
The request was based on non-use of “3 in 1″ trade mark. Mokate filed a motion asking the PPO to reject Nestle’s request. The motion was based on the lack of legitimate interest on Nestle’s side. The PPO agreed with Mokate’s argument. Nestle filed a complaint to the Voivodeship Administrative Court in Warsaw. The VAC in its judgment of 3 December 2007, act signture VI SA/Wa 1036/07 rejected Nestle’s complaint. The company filed a cassation complaint to the Supreme Administrative Court. The SAC in its judgment of 12 March 2009, act signature II GSK 774/08 held that conditions of legitimate interest are based on two levels — procedural — because it is justifying the initiation of administrative proceedings in a particular matter and “substantive”, as it results from the provisions of the law that apply to certain rights and obligations of a person (legal or natural). Although the substantive law is the source for the legitimate interest but the legal interest as a condition that justfies the initiation of the procedure for declaration on the lapse of the right of protection for the trademark is primarily a category of administrative procedure – one of the principles of this proceedings as to its proper initiation. The cassation complaint was rejected.
In case of a request for invalidation of the right of protection to PLANTAGINIS R-105263 trade mark filed by Polish company Gemi from Karczew, the Supreme Administrative Court in its judgment of 20 November 2008, act signature II GSK 503/08 ruled that it is usually assumed that legitimate interest is the normative category of the substantive law and its source is the substantive law. On this basis the party of an administrative proceedings is entitled to request to specify his or her powers and duties or require an administrative court or body to perform an examination of a legal act or acts in order to protect him or her against violations that was made by this legal act or acts and to lead to a situation that it is consistent with the law.
The legitimate interest may also derive from legal norms not only belonging to the administrative law. The confirmation of legitimate interest is always due to the likely connection between the norm of the substantive law and the situation of legal entity to the effect that the act of application of this legal norm (eg, an administrative decision) may affect the legal position of this entity in the field of the substantive law. The SAC also agreed with the opinion of academics that there aren’t any universal definition of a legitimate interest in the field of industrial property law that would include complex situations to justify the submission of the request for invalidation of an exclusive right.
The SAC noted that the case law indicates article 20 of the Constitution of the Republic of Poland of 2nd April 1997 as published in Dziennik Ustaw (Journal of Laws) No. 78, pos. 483.
A social market economy, based on the freedom of economic activity, private ownership, and solidarity, dialogue and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland.
The Court also pointed out to article Paragraph 6(1) of the Law on Freedom of Economic Activity (in Polish: ustawa o swobodzie dzialalnosci gospodarczej) corresponding to the content of article 5 of the Act of 19 November 1999 – Law of economic activity (in Polish: Prawo dzialalnosci gospodarczej), Dziennik Ustaw (Journal of Laws) No. 101, pos. 1178, as amended.
The assumption, conduct and termination of economic activity shall be free to all on an equal-rights basis, subject to conditions determined in provisions of law.
2. The public administration authority shall neither demand nor make its decision in the matter of the assumption, conduct, or termination of economic activity by an interested party conditional upon satisfaction by this party of additional conditions, including without limitation on the submission of documents or disclosure of information other than that set out in provisions of law.
These are the basis for deriving the legitimate interest for the party seeking for the standing in the proceedings for the lapse or invalidation of a right of protection for a trade mark.
When deriving the legitimate interest from the aforementioned legal regulations in case of the invalidation proceedings of a trade mark it is necessary to demonstrate why and how the right of protection for PLANTAGINIS R-105263 trade mark affect on the legal position of Gemi Company as an entrepreneur. Each entrepreneur has the right to a trademark if the right is not in conflict as to the form, and the period of validity of the previously acquired trade mark right of the same sign. It was necessary to demonstrate that the GEMI’s legitimate interest is relevant to its legal position, because it is current, real, direct and their own (these are the most common elements and features of the legitimate interest), such as verifiability of the legitimate interests and the possibility of obtaining specific benefits. In such cases it concerns the so-called “reflections right” which is creating the legal position of a party not directly, but by a decision of the Polish Patent Office which is “taking back” a right of protection for an earlier trade mark granted to another company.
The SAC rejected the cassation complaint because it has found that GEMI company did not file its request for invalidation PLANTAGINIS R-105263 trade mark rights in order to obtain the right of protection for the disputed mark for its own. It also did not demonstrate the existence of any obstacles to conduct its business during the sale of goods marked with the disputed trade mark.