The Supreme Administrative Court (SAC) in its judgment of 3 October 2009 case file I FSK 1169/08 did not share the views that the the Directive 112 provides the absolute obligation to keep copies of invoices in the same form in which they were sent. In the opinion of the SAC, the only thing that can be inferred from the Directive is that the copy of the invoice can be stored in paper or electronic form. It is also wrong to confuse the term “issue” and “send” with regard to invoices. The Polish legislator did not exactly implement standards resulting from the Article 27(2) of the Directive. The omission of the phrase “in which they were sent or issued”, leads to ambiguity in language interpretation of the law. There is no legislative impediment to the existence of “mixed” system for sending and storage of invoices. In addition, the SAC decided that the obligation to keep invoices on paper, where other methods of storage also enable the objectives of Article 246 Directive 112 to be fullfiled, is the excessive responsibility and violates the principle of proportionality.
Archive for: August, 2009
Tax law, case I FSK 1169/08
August 31st, 2009, Tomasz RychlickiTrade mark law, case II GSK 986/08
August 31st, 2009, Tomasz RychlickiThe Supreme Administrative Court in its judgment of 3 June 2009 case file II GSK 986/08 held that the provisions of Article 132(2)(ii) of the IPL does not refer only to the so-called direct risk, that is a situation where the similarity of the opposing trade marks is so close that the consumer may be easily confused but also a situation of the so-called indirect risk, which is based on the fact that the potential customer may mistakenly associate both trade marks.
2. A right of protection for a trademark shall not be granted, if the trademark:
(ii) is identical or similar to a trademark 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 risk of confusion as referred to in that provision of the IPL, includes therefore the likelihood of customer confusion as to the origin of the goods in the strict sense, as well as the risk of confusion as to the relationship of sources of origin of goods bearing the opposed trade marks. This is simply a situation where the average customer, following the association between two marks, may assume that a company using a similar trade mark as the owner of a prioro right , is in economiclegal or organizational relationships, that are essential for the manufacture, marking, and the introduction of a product to the market. This case concerned a decision on definitive refusal to recognize the protection of Tim IR-0809911 trade mark.
Trade mark law, case VI SA/Wa 2376/08
August 28th, 2009, Tomasz RychlickiOn 21 February 2004, Wolny Związek Zawodowy Kierowców Rzeczpospolitej Polskiej (Free Trade Union of Drivers of the Republic of Poland) from Warszawa applied to register the word-figurative trade mark WOLNY ZWIĄZEK ZAWODOWY KIEROWCÓW in classes 4, 12, 35, 36, 37, 38, 39, 41, 42, 43, 44 and 45.
In a letter dated 30 August 2006, the Polish Patent Office informed the applicant that, under article 131(2)(ii) and article 145 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, it can not be granted the right of protection for the applied sign.
Article 131
2. A right of protection shall not be granted for a sign, if:
(ii) it incorporates the name or abbreviated name of the Republic of Poland, or its symbols (emblem, national colours or national anthem), the names or armorial bearings of Polish voivodships, towns or communities, the insignia of the armed forces, paramilitary organisations or police forces, reproductions of Polish decorations, honorary distinctions or medals, military medals or military insignia, or other official or generally used distinctions and medals, in particular those of government administration, local self-administration or social organisations performing activities in vital public interests, where these organisations’ activities extend to the entire territory of the State or to a substantial part thereof, unless the applicant is able to produce evidence of his right, in particular in a form of an authorisation issued by a competent State agency or a permission given by an organisation, to use the sign in the course of trade,
(…)
Article 145
1. Subject to paragraph (2), where the Patent Office finds that the statutory requirements for the grant of a right of protection for a trademark have not been satisfied, it shall make a decision on refusal to grant the right.2. Before the decision referred to in paragraph (1) is made, the Patent Office shall fix a time limit, within which the applicant is invited to react on the collected evidences and documents which imply the existence of grounds that may cause the right of protection to be denied.
The PPO pointed out that the mark contains a white eagle, which is protected based on the provisions of the Act on Coat of Arms, Colours and Anthem of the Republic of Poland (in Polish: ustawa o godle, barwach i hymnie Rzeczypospolitej Polskiej) of 31 January 1980, published in Journal of Laws (Dziennik Ustaw) No. 7, item 18, with later amendments.
In response to the objections raised by the Polish Patent Office, the applicant in a letter dated 11 September 2006, disagreed with the PPO’s assessment and claimed that the drawing of a bird included in the trade mark recalls an eagle, but it is a completely different bird to that depicted in the emblem of the Republic of Poland. WZZK pointed out the different colour of a bird, the colouring of his crown and claws, and the differences in the background. WZZK also noted that the mark includes the inscription “Wolny Związek Zawodowy Kierowców” (Free Trade Union of Drivers).
The Polish Patent Office in its decision of 22 June 2007 refused to grant a right of protection for the applied trademark. In a letter dated 23 July 2007 WZZK requested a retrial, calling for the reversal of the contested decision. In its decision of 19 September 2008, case file DT265/07, the Polish Patent Office upheld the contested decision of 22 June 2007. The PPO pointed out, that the provisions of article 131(2)(ii) of the IPL meet a double function. It is one of the provisions to guarantee the state, its bodies and institutions a monopoly on the use of state symbols. These symbols have a specific role in business transactions and are intended solely for the identification of specific nationals’ bodies or institutions, or documents derived or issued by them. Moreover, this provision assures the average consumer that the national symbols are used by the authorized institutions of the Polish state. The PPO also cited article 16(2) of the Act on Coat of Arms, Colours and Anthem of the Republic of Poland, according to which, it is permitted to place on goods intended for trading the emblem of the Republic of Poland or the colours in a stylized or artistically prepared form, but the PPO also said that these provision only authorize for the placement and they do not allow to grant the right of protection. WZZK filed a complaint to the Voivodeship Administrative Court (VAC) in Warsaw.
The Voivodeship Administrative Court in its a judgment of 6 March 2009 case file VI SA/Wa 2376/08 dismissed the complaint and ruled that pursuant to article 28 of the Constitution of the Republic of Poland, the emblem, colours and the national anthem of the Republic of Polish are protected by law and details regarding these symbols are provided in the Act on Coat of Arms, Colours and Anthem of the Republic of Poland. Article 1(1)(2) and (3) of this Act provides that the white eagle, white-red color and “Mazurek Dąbrowskiego” are the symbols of the Republic of Poland. The right and the duty of every citizen of the Republic of Poland and all state organs, institutions and organizations is to respect these symbols. These symbols remain under special protection provided in different regulations. The provision included in article 131(2)(ii) of the IPL excludes the possibility to grant the right of protection for the sign, not only when it contains an exact reproduction of the image of an eagle as provided in the Annex 1 to the Act on Coat of Arms, Colours and Anthem of the Republic of Poland but also when a sign contains a drawing of an eagle as described in article 2(1) of the Act.
The coat of arms of the Republic of Poland is the image of a white eagle with a gold crown on his head turned right, with unfolded wings and gold beak and claws, on a red field.
This provision allows for the registration of a trade mark which contains, among others the emblem, only in one case – the applicant has to prove to have the right to use such trade mark in trade. It was undisputed for the Court that the applicant had no such right. And for all readers interested in these issues I would like to recommend reading Grzegorz Pacek’s article entitled Marks as imitations of State emblems ‘from a heraldic point of view’ that was recently published in the Journal of Intellectual Property Law & Practice, Volume 4, Number 9, September 2009.
The rest of the story is described in the post entitled “Trade mark law, case II GSK 555/09“.
Trade mark law, case VI SA/Wa 1655/08
August 27th, 2009, Tomasz RychlickiOn 7 February 2003, Browar Belgia Sp. z o.o. from Kielce applied to register the word trade mark GINGERS Z-260753 for goods such as beer, beer-based drinks, juices, syrups, essences for making beverages, soft drinks, preparations for the production and manufacture of beverages, extracts and extracts of hop in class 32.
In a letter dated 14 May 2004, the Polish Patent Office informed the applicant that there was an obstacle to granting the right of protection for GINGERS mark, since it is an informative sign which has insufficient distinctive character to enable it to distinguish the products of one undertaking from other companies, under normal market conditions.
In its letter of 14 June 2004 Browar Belgia argued that, contrary to the assertion of the PPO, the name “gingers” associated with the list of goods covered by the application is not a generic term and does not perform only an informative function. Browar Belgia noted that the word “gingers” has multiple meanings in English language and can be understood as, inter alia, the colour red/red-headed and also as verve, the zest or liveness, and the word “ginger” is just one of many translations into Polish. The name GINGERS should also be regarded as fanciful because it has the “s” letter placed at the end of a word, while the noun “GINGER” is singular. Moreover, it is unreasonable to say that all consumers of beer and soft drinks in Poland speak fluent English and will associate English word with its counterpart in the Polish language, ie ginger.
In a letter of 17 October 2005, the PPO expressed the view based on articles 129(1)(ii), article 129(2)(i) and (ii) and article 131(1)(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.
1. Rights of protection shall not be granted for signs which:
(ii) are devoid of sufficient distinctive character.Article 129(2)(i) and (ii)
2. Subject to Article 130, the following shall be considered as being devoid of sufficient distinctive character:
(i) signs which are not capable of distinguishing, in trade, the goods for which they have been applied,
(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,Article 131(1)(iii)
1. Rights of protection shall not be granted for signs:
(iii) which, as for their nature, may mislead the public, in particular as to the nature, properties of the goods or, with regard to paragraph (3), as to the geographic origin thereof,
The PPO noted that the mark applied for cannot be granted a right of protection due to the fact that the sign is informative for the majority of goods in class 32 and as for extracts and extracts of hops; it is a sign that it may mislead the public as to the nature or characteristics of these goods. In its decision of 28 February 2007, the Polish Patent Office refused to grant the right of protection for the word trade mark GINGERS. The PPO noted that granting the right of protection for GINGERS word trade mark in favor of one entrepreneur would limit freedom of business activity of other market participants in the process of producing and marketing of these goods and thus hamper the business activities of other entities.
In a letter dated 11 May 2007, Browar Belgia requested a retrial, calling for the reversal of the contested decision. According to Browar Belgia, granting the right of protection for GINGERS trade mark would not limit anyone from the possibility of providing, for example, the composition of beer on the label in place designated for that purpose, but this does not mean that the composition of beer, to be specific the content of the component, is a passport to putting GINGERS into other trade marks. It was an unacceptable situation in which another party would benefit from the reputation of the trade Gingers, that was promoted by a very expensive advertising campaign. In the meantime, Browar Belgia transferred the right to trade mark application GINGERS Z-260753 to Kompania Piwowarska S.A. from Poznań. In a decision of 30 May 2008, the PPO upheld in entirety its previous decision of 2007. Browar Belgia filed a complaint to the Voivodeship Administrative Court (VAC) in Warsaw and Kompania Piwowarska joined the case.
The VAC in its judgment of 17 February 2009, case file VI SA/Wa 1655/08 dismissed the complaint and ruled that the principle of free access for all traders to signs that serve to communicate information about the nature of goods, their characteristics or properties does not allow for their monopolization by a single market participant.
Industrial design law, case VI SA/Wa 746/09
August 23rd, 2009, Tomasz RychlickiThe Polish Patent Office registered the design of a bottle in the form of a contour map of Poland Rp-11003, applied for by Przedsiębiorstwo Wielobranżowe Euro-Kamil Polska sp. z o. o. from Wrocław.
Jacek Andruszkiewicz from Warszawa filed a request for invalidation of this design. Mr Andruszkiewicz argued that the questioned design lacks of novelty. He pointed out to the 3D trade mark registration R-91920 owned by Jacek Andruszkiewicz Jolanta Duch s.c. DAYGLOB Biuro Exportowo-Importowe from 6 October 1995.
The PPO invalidated the right in registration in its decision of 14 January 2009, case file Sp. 555/07. The PPO held that Jacek Andruszkiwicz had a legal interest in seeking the invalidation, as a competitor in the market of bottles. Euro-Kamil filed a complaint against this decision.
The Voivodeship Administrative Court in Warsaw in its judgment of 22 June 2009, case file VI SA/Wa 746/09 repealed the contested decision and held it unenforceable. The Court ruled that the PPO did not examine if the legal interest was real and sent this case for reconsideration.
See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.
Industrial design, case VI SA/Wa 664/09
August 20th, 2009, Tomasz RychlickiThe Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 19 August 2009, case file VI SA/Wa 664/09, ruled that according to articles 106, 1061 and 107 of the IPL
Article 106
1. Rights in registration shall not be granted for industrial designs whose exploitation would be contrary to public order or morality; exploitation of an industrial design shall not be considered to be contrary to public order merely because it is prohibited by law.2. Subject to the exceptions provided for in this Law, rights in registration shall neither be granted for industrial designs that include the signs referred to in Article 131(2)(ii)-(v).
Article 1061
1. Protection conferred by the registration of a design shall not exist for a product which constitutes a component part of a complex product used for the purpose of the repair of that complex product so as to restore its original appearance.2. Third parties shall be permitted to use the product referred to in paragraph 1 in a form of making, offering, putting on the market, importing, exporting or using of the product in which the design is incorporated or to which it is applied, or stocking such product for those purposes.
Article 107
1. The right in registration of an industrial design shall not subsist in features of a product:
(i) which are solely dictated by its technical function,
(ii) which must necessarily be reproduced in their exact form and dimensions in order to permit the product to be mechanically connected to, or to interact with, another product.2. The provision of paragraph (1) shall be without prejudice to the registration of an industrial design serving the purpose of allowing multiple assembly or connection of mutually interchangeable products within a modular system.
it is apparent that the protection does not cover the features of a product, which are determined solely by their technical functions and those which must be reproduced in their exact form and measurements in order to allow mechanical connection or interaction with other product (spare parts).
This case concerned the industrial design “Kołek mocujący” (in English: fixing peg), Rp-10736.
See also my post entitled “Polish case law on industrial designs“.
Trade mark law, case VI SA/Wa 1917/08
August 18th, 2009, Tomasz RychlickiOn 23 September 2005, the Polish Patent Office granted the right of protection for the word trade mark COROTAPE R-168086 for goods such as tape, foil and anti-corrosion membranes in class 2 and goods in class 16. The right was granted to the Polish company CB Spółka z o.o. from Opole. Coroplast Fritz Müller GmbH & Co.K.G. from Wuppertal, Germany, filed a notice of opposition based on article 246 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. Within six months from the publication in “Wiadomości Urzędu Patentowego” of the mention of the grant of a title of protection, any person may give reasoned notice of opposition to a final decision of the Patent Office on the grant of a patent, a right of protection or a right in registration.
2. The opposition referred to in paragraph (1) may be filed on the same grounds, on which a patent, a right of protection or a right in registration may be invalidated.
Coroplast Fritz Müller argued that COROTAPE was similar to its COROPLAST mark R-91907, registered for goods in classes 2, 9, 16 and 17 and that they were confusingly similar because they shared the same prefix “coro”. There was therefore a risk that the average recipient of the goods bearing compared trade marks, may think that the conflicting signs, as having a common, “coro” prefix, derived from the same manufacturer or from companies affiliated (legally or organizationally). In addition, Coroplast Fritz Müller argued that the trade mark application was made in bad faith, because its products were present in Poland for many years and had established a reputation of which CB Spółka z o.o. must have been aware.
CB Spółka z o.o. argued that it continued the development of the COROTOP brand and that the disputed trade mark was not similar to the trade mark and company name of Coroplast Fritz Müller in their phonetic aspect because, in spite of the identical prefix, they had a completely different ending, indicating the nature of the product. In addition, the Polish Patent Office had registered a number trade mark starting with the prefix “coro” or “koro” for goods in classes 2 and 17. What’s more, there was no risk of misleading, because the goods were placed on the market in conjunction with the information for the customer and for a limited group of specialized recipients.
Coroplast Fritz Müller further stated that the Polish company acted in bad faith because it had used COROPLAST on its website which was removed as a result of the cease and desist letter, and since the seat of CB Spółka z o.o. was located where two Polish subsidiaries of German companies also operated.
While assessing the similarity of the two characters, the PPO found that they consisted of three syllables, with the same fanciful prefix, which is a distinctive element and acts as a tip about the commodity. As a result, the PPO found that the disputed trade mark was similar to the earlier registered sign in its visual and aural aspects but was not similar in the conceptual context. The PPO indicated that the visual similarity was based on the same syllables, the same letters in the same or similar quantities. The PPO also stressed that the disputed mark was of three syllables, using the same “coro” prefix, which was fanciful, and was definitely a distinctive element. The “tape” ending was far less important, fulfilling an information role about the function of the goods. The use of the “coro ” prefix maked the signs phonetically similar.
Referring to the case law, the PPO emphasized that assessment of a trade mark is made as a whole and the risk of misleading the consumer must be assessed globally, taking into the account all relevant factors. In the PPO’s assessment, despite the assumption that the average consumer is a person duly informed, careful and cautious, there is a risk of confusion. The buyers, while recognizing the difference between COROPLAST and COROTAPE, would wrongly assume – because of the prefix which is identical – that they purchased the goods originating from one manufacturer or from the entities that are economically and organisationally linked.
The PPO did not agree with an argument that it had registered a number of trade marks for goods in in class 2 and 17 with “coro” and “Koro” prefixes. It pointed out that none of these trade marks was intended to designate the goods that were concerned in this dispute, adhesive tapes for industrial use.
In addition the PPO found that the applicant made a bad faith application for COROTAPE. It was evidenced by the use of “coroplast” in the offer and on its website. The PPO found that it was not accidental that the use of the prefix “coro” in the COROTAPE and COROTOP trade marks, which are leading brands of CB Spółka z o.o. The PPO also stressed the significant fact that there were two factories belonging to Coroplast Fritz Müller GmbH, located in small towns around Opole (where CB Spółka z o.o. has its business seat), which have operated since 1994 and 1998. According to the PPO, it was not possible that CB Spółka z o.o. was not aware of the existence of these factories and unwittingly created a trade mark with a “coro” prefix.
The Polish Patent Office invalidated the right of protection for COROTAPE R-168086 trade mark. CB Spółka z o.o. filed a complaint to the Voivodeship Administrative Court in Warsaw. Although the VAC in a judgment of 19 February 2009, case file VI SA/Wa 1917/08 ruled that an application for the rights for protection of a trade mark in bad faith occurs when, despite the knowledge or ignorance, which is a corollary of a lack of diligence, regarding the existence of someone else’s rights or interest worth of protection, which may be threatened by such application, and with the intent to harm someone’s else interests. The intention, assessed from the point of view of fairness and honesty, is of great importance for the assessment of applicant’s bad faith.
Such is the case when the trade mark application is done in order to eliminate a competitor with the intent to capture his clientele. Acting in bad faith is one who knows or with due diligence should know about the use of a trade mark by another highly successful entrepreneur and – anticipating his application for the right of protection for a trade mark – he applies for the registration of such trade mark. Acting in bad faith is a person who applies for a trade mark rights for a sign belonging to a foreign entrepreneur to prevent him in obtaining protection in the Republic of Poland or in order to obtain profits from the sale of such acquired rights.
But the Court also held that the Polish Patent Office did not properly justify its decision on the bad faith application. The VAC found that the issueance of the contested decision was made in breach of the procedural law, and it annulled it, ruling that the decision was not a subject to execution. The judgment is final.
Trade mark law, case II GSK 961/08
August 15th, 2009, Tomasz RychlickiI hope that the complexity of the Polish law will not terrify Plena titula readers from wading through this post. Let’s start … from the beginning. By its decision of 20 January 1994, the Polish Patent Office registered the word trade mark JAZZ JAMBOREE R-75805 for services such as concert activities in class 41, with the priority date of 21 August 1991, for PSJ (the applicant).
In a letter dated 9 January 1995 and in a letter on February 2, 1995 Mr./Ms. BM (a debt collector/bailiff whose name is anonymized in the courts’ judgments) asked the PPO to distrain PSJ’s right to the JAZZ JAMBOREE R-75805 trade mark (in an order of February 1996 the Voivodeship Court dismissed the complaint brought by PSJ against the decision on the distraint and dismissed the complaint brought by Fundacja Jazz Jamboree from Warszawa).
By an order of January 1996, the Polish Patent Office made some changes in the Trade Mark register. The PPO deleted PSJ from the entry for the holder of the right of protection for JAZZ JAMBOREE R-75805 trade mark and in its place was entered the Fundacja Jazz Jamboree which, was later deleted and in its place was entered the Konsorcjum J.I. s.c.
By an order of December 1997 the Polish Patent Office deleted the Konsorcjum J.I. s.c and entered J.J. Sp. z o.o. as the holder.
By an order of June 2000, the PPO again changed the registry entry for the holder, deleting the J.J. Sp. z o.o., and entering PSJ; it then deleted the PSJ and entered Fundacja Jazz Jamboree.
By an order of June 2003, the District Court ordered the sale of the right of protection for JAZZ JAMBOREE R-75805 trade mark.
By an order of February 2006, the bailiff of a District Court enforced a court judgment (the execution was ordered against sums due and property rights) in the name of “A.P.” S.A. against PSJ and granted the right of protection for JAZZ JAMBOREE R-75805 to “AP” S.A. (it was unsold at the first and the second auction).
In its application of the May 2006, “A.P.” S.A. asked the Polish Patent Office to disclose the acquisition of trade mark rights to JAZZ JAMBOREE R-75805 in the Trade Mark registry. The application had attached the District Court’s order of June 2003, ordering the sale of the right of protection, and the bailiff’s order of February 2006 to grant to the unsold property rights to “A.P.” S.A.
By its decision of July 2006, the PPO, made changes in the Trade Marks register (in the “A” field – a holder), deleted Fundacja Jazz Jamboree as the holder and entered “A.P.” S.A. in this field, basing itself on the provisions of article 229(1) 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 229
1. In matters in which entries in a register are conditional upon submission of a request, the entry shall be made by virtue of a decision.
(…)
2. When examining the request referred to in paragraph (1), the Patent Office shall investigate whether the submitted documents, supposed to provide grounds for taking a decision on entry in a register, are in accordance with this Law and satisfy the effective provisions as to form.
Fundacja Jazz Jamboree filed before the PPO a request for re-examination of the matter, arguing that the decision of July 2006 is wrong, because it did not take into account the fact of prior transfers of the right of protection for JAZZ JAMBOREE R-75805 from PSJ to Fundacja Jazz Jamboree, and its subsequent transfers. Fundacja Jazz Jamboree claimed that the decision of the District Court and the enforcement titles were issued against PSJ and not against Fundacja Jazz Jamboree, and that it was unlawful to decide on the transfer of JAZZ JAMBOREE R-75805 trade mark to “A.P.” S.A., since the registration gave title to Fundacja Jazz Jamboree.
In a decision of September 2007 the Polish Patent Office upheld the contested decision. The PPO indicated that the decision of July 2006 was issued pursuant to the bailiff’s order of February 2006. In accordance with the provisions of the Act of 17 November 1964, Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, Journal of Laws (Dziennik Ustaw) No 43, item 296, with later amendments., the acquisition of rights regulated under the chapter on rules for the execution has the nature of original acquisition of rights. Accordingly the new owner acquires the right, without any encumbrances and burdens.
The Polish Patent Office does not investigate who was the owner of a trade mark right and in what period of time. Since the entry in the Trade Mark register has a declaratory nature, and thus corresponds to the right that was granted to “A.P.” S.A. The PPO deals with the entering these facts on the register and is not a body of enforcement, much less the authority competent to decide on the merits or the effectiveness of the seizure by the bailiff or on the grant of rights to another company. The PPO also noted that Fundacja Jazz Jamboree had a chance to file anti-executory proceedings complaint, as provided in the article 841 of the CPC.
Fundacja Jazz Jamboree filed a complaint to the Voivodeship Administrative Court in Warsaw but it was rejected by the VAC in a judgment of 10 March 2008, case file VI SA/Wa 2027/07.
The cassation complaint brought by Fundacja Jazz Jamboree before the Supreme Administrative Court was also rejected in its judgment of 21 May 2009, case file II GSK 961/08. The SAC ruled that the Polish Patent Office within the confines of the registration proceedings regulated in article 229(2) of the IPL does not investigate the substantive basis for drawing up documents that are the basis for the entry into the registry. The Patent Office does not conduct any hearing of evidence with regard to circumstances underlying the issuance of documents that serve as a basis for an entry to a register and it has no control over the regularity of the proceedings leading to the issuance of documents that are a basis for an entry to a register.
Press law, case VI Ka 202/09
August 3rd, 2009, Tomasz RychlickiThis is the continuation of a story described in “Press law, case II K 367/08“. The District Court in Słupsk in its judgment of 18 June 2009 case file VI Ka 202/09 held that gby.pl – a portal website operated by Leszek Szymczak constituted press under the Press law, however, comments posted on this website by the Internauts do not constitute a press material for the content of which the website administrator could be held responsible. The District Court held that the posts are not letters to the editor or are not – as the Prosecutor argued – “quasi-letters” to the editor. The court said that the posting process on an internet forum is made automatically, there is no prior moderation of such messages.
The administrator of a portal website, which allows for posting comments, is the hosting service provider and is subject to regulations included in article 14 of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), Journal of Laws (Dziennik Ustaw) No. 144, item. 1204, as amended.
1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.
2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.
3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.
The Court ruled that the service provider cannot be held liable for material posted by its users. The court noted that the decision does not mean that no one should be held liable for the posts that contain an offensive material that is a subject to criminal prosecution. The responsibility for this activity should be borne by a direct perpetrator and the prosecution authorities should identify such persons by using the available technical resources (IP addresses). The Prosecution cannot go after the smallest line of resistance and charge the administrators, instead of the actual perpetrators.
See also “Press law, case VI Ka 409/07” and “Internet websites, case I C 1532/09“.