Polish IP & IT law » 2009

Archive for: July, 2009

Poland: depreciation for registered trade marks only

July 24th, 2009, Tomasz Rychlicki

Financial issues relating to trade marks are not a frequent subject matter that is discussed on my website, therefore I decided to write a short post regarding that topic.

The assembly of shareholders of a Polish company (spółka z ograniczoną odpowiedzialnością – a legal concept similar to the limited company), following a resolution, decided to increase the company’s share capital by the creation of new shares. The new shares were covered by the shareholders in the form of an enterprise (the enterprise as as a subject of rights). One of the components of the enterprise was a trade mark valued at 750,000 PLN (around 179,016,307 Euros). The trade mark was entered in the company’s books in 2000 and the company started depreciating this asset in 2001 based on the provisions of article 16b(1)(6) of the Polish Act of 15 February 1992 on legal persons’ income tax – LPIT (in Polish: Ustawa o podatku dochodowym od osób prawnych) consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654 with subsequent amendments.

The following intangible assets, acquired and fit for commercial use as at the date of acceptance for use, shall be depreciated, subject to Article 16c:
(6) rights to: inventions, patents, trade marks, designs;

This action was called into question by the Director of the Tax Office, who duly imposed tax (19,006 PLN for year 2002). The company appealed against this decision to the Director of the Tax Revenue Audit Office, but it was upheld. The findings made in the course of the investigation showed that, both in 2002 and in an earlier period of time, the sign in question had not been granted the right of protection, having been applied for at the Polish Patent Office on 8 November 2000.

The company filed a complaint to the Voivodeship Administrative Court (VAC) in Rzeszów.

The VAC, in a judgment of 21 May 2009, case file I SA/Rz 249/09, ruled that provisions of the LPIT allow only for the depreciation of the registered trade mark, since mere priority (the right of priority) to obtain a right of protection for a trade mark is not the right which is explicitly mentioned in article 16(1) of the LPIT.

The VAC emphasized the fact that the acquisition of rights to a trade mark occurs within the system of constitutive registration, the law-creating nature of which is attributed to “an act of registration” made by the Polish Patent Office in the form of the administrative decision. The only exception to this rule is the acquisition of rights to well-known trade marks, the protection of which does not depend on the registration – but it was not the issue of this case.

The shoemaker’s son not always goes barefoot…

July 24th, 2009, Tomasz Rychlicki

I am really impressed. The right of protection for word-figurative trade mark R-196225.

Applied on 19 September 2007, the right of protection was granted by the Polish Patent Office on 28 December 2007. It must have been express examination proceedings. Nice classes: 01, 02, 03, 04, 05, 06, 07, 08, 09, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45. :)

Categories: Polish Patent Office | Polish law | trademark law.

Good luck with your application!

July 22nd, 2009, Tomasz Rychlicki

I found an article entitled “Kraków wants to patent Hejnał Mariacki“. I do not want to discuss how imprecise is the title. Let me just quote a short excerpt from this article.

The Kraków’s magistrate applied to the Polish Patent Office for Hejnał Mariacki trade mark. The magistrate wants to protect it as a sound trade mark for services such as promotion of the city and services connected with the creation of city’s image.

- The Kraków’s magistrate has filed an application to the Polish Patent Office for the protection for a sound trademark – a record of Hejnał played from Wieża Mariacka – told Filip Szatanik – the head of a press office of the mayor of the city.

Good luck.

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

It is out now!

July 14th, 2009, Tomasz Rychlicki

My dear readers. All P.T. readers. I would like to draw your attention to the International Free and Open Source Software Law Review. It is an absolutely free publication on legal aspects of free and open source software. The first issue is available for download (both HTML or PDF versions) directly from its website. There, you’ll find couple of interesting articles. In particular, I recommend Shane Coughlan’s and Andrew Martin Katz’s article titled “Introducing the Risk Grid“. I will also immodestly mention that from the very beginning I was involved in the creation of the IFOSS L. Rev. and I am currently a member of the editorial board. Of course, I invite everyone to write for his periodical. Please do not hesitate to submit your papers.

There is another “Polish theme” in the IFOSS L. Rev. Great logotype and covers for the journal were created pro bono by my good friend Tomasz Politański.

Copyrights in fonts typefaces

July 3rd, 2009, Tomasz Rychlicki

Legendary slanting font, in which the famous logo of Solidarity was written, is still eagerly used, but usually in a different context than its creator Jerzy Janiszewski would want to.

This characteristic typography was used, inter alia, in a new action of Gazeta Wyborcza newspaper called “We, narkopoles”. In turn, the word “equality” but with the rainbow flag, instead of white and red, was put on the cover of the last issue of a well-know homosexual magazine “Replika”. Solidaryca also appeared in advertisements, on boxes of cigarettes and bottles of vodka.

- These are cases of abuse and feeding on the values which the logotype commemorates. It leads to the devaluation of that symbol – says Janiszewski, who now lives in Spain. – I did not transfer my economic authors’ rights to anyone.

SOLIDARNOŚĆ

If you looking for more details, please read Rzeczpospolita’s article entitled “Solidaryca w służbie narkopolaków“.

Fonts’ typefaces can be protected as industrial designs in the Republic of Poland based on the provisions 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 on 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments.

Article 102
1. Any new and having individual character appearance of the whole or a part of a product resulting from the features of, in particular, the lines, colours, shape, texture or materials of the product and its ornamentation, shall constitute an industrial design.
2. Any industrial or handicraft item, including, in particular, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs, shall be considered to be a product.

However, the US law provides quite different approach. I wrote about that issue in my old post entitled “Music Videos And Typography“.

Allusive trade marks

July 1st, 2009, Tomasz Rychlicki

An interesting example is BALSAM Z SADŁA ŚWISTAKA R-183603 trade mark. It should be translated as Balm of Marmot’s Fat. But still, in my ranking of allusive trade marks, the first place is given to the application filed by the Polish company Przedsiębiorstwo Produkcyjno-Handlowe “Paola” Spółka z o.o. z Bielan Wrocławskich for the sign “A to ci puszka” Z-233576, which in strict translation shall be undestood as “What a can” but in fact in a loosely translation can be understood as “What a cunt”. I just wonder what the examiner of the Polish Patent Office has thought about it.

Categories: trademark law.