Intellectual Property Law Internet Law IT Law Computer Law

My post in Polish language is long and probably boring for most of you. It concerns Justyna Steczkowska’s naked pictures taken during her holiday at Turkish Rivera and being published by “Super Express”, which is one of many Polish tabliods. I also wrote about some comments that were posted by Polish lawyers regarding the right of privacy issue and I wanted to write a comparative note about American and Polish legal systems but I am way too busy for such undertaking. I can only tell you that Maciej Ślusarek, an attorney representing Justyna Steczkowska, will have easier case in Poland as opposed to the US legal reality. Mr. Ślusarek previously won a case against “Super Express” publisher and editor-in-chief. It was a very important judgment of the Appellate Court in Warsaw of 29 September 2006, act signature I ACa 385/2006. Mr. Ślusarek represented another Polish singer Edyta Górniak. The Court held that there is a need to distinguish the persons carrying out the public functions, if a person due to the character of those functions might be subjected to public control and the openness of their life is justified by the important society interest, from the commonly known persons, who are not subjected to such intense public control. The distinction included in court’s ruling is of course of great importance for protection limitations established for such persons.

The protection of personal image/publicity rights is provided in the Polish Civil Code in §23. This provision outlines the personal image as one of the personal property - an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image provideded by provisions included in the Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes.

Article 81.
1. The dissemination of an image shall require the permission of the person presented in that image. Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing.
2. The permission shall not be required for the dissemination of the image:
1) of a commonly known person, if such image has been made in connection with his/her performance of public functions and, in particular, political, social or professional functions,
2) of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event.
(…)
Article 83.
The provisions of Article 78, paragraph 1 shall apply respectively to claims brought due to the dissemination of the image of the person presented in it and the dissemination of correspondence without the required permission of the person to whom it was addressed; such claims may not be asserted after the lapse of twenty years from the death of that person.

Additional protection is also provided by regulations in the Act of 26 January 1984 on Press Law, the Penal Code and the Act of 29 August 1997 on Personal Data Protection. The protection of privacy and publicity may also derive from the Constitution of the Republic of Poland of 2 April 1997.

Article 47
Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.
(…)
Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

and from the European Convention on Human Rights of 4 November 1950.

There is a story of some logo “borrowing” described at www.ecogeek.org website. Paweł Tkaczyk posted a short note about a similar situation in Poland. If someone of you knows about any of such “borrowings” or “similarities” then I’d be happy to read about it. Trust me, I’m not going to sue anyone I just need it for, let’s say “scientific” purposes. :)

My last post has triggered some reponses so I’d like to clarify it, in a really short explanation. There is no requirement for copyright protection and enforcement in Poland. The Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes, explicitly provides that:.

Art. 1, sec. 4
The creator is eligible for protection independently of compliance with formalities of any kind.

How does it work in the US? 17 U.S.C. § 411. Registration and infringement actions (emphasis mine):

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and except for actions for infringement of copyright in Berne Convention works whose country of origin is not the United States, and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title (…)

What does it mean? It means that an effective enforcement of copyright rights is not so easy for the owner. One more time - it applies to any United States work.

According to the recent judgment of the Polish Supreme Court of 30 June 2008, act signature I KZP 8/08, PDF file, in Polish language, buying counterfeited goods is not fencing. For more information and commentary please refer to Class46 website.

I browsed through specific or peculiar artworks of Rob Nance that are available at his website - www.artforrobots.com. I started to think more when I saw “Poseable Paper Pope”. Parody. Bad taste? De gustibus non disputandum est. Publicity right? It is quite relaxing situation for Mr Nance that Vatican does not sue so eagerly as it usually happens in the US. Just check such case as White v. Samsung, 971 F. 2d 1395 (9th Cir. 1992). Ms Vanna White (I have to add that Magda Masny was her counterpart in Poland) has sued Samsung for using her “image” in Samsung’s ads. I really really recommend you to read this judgment. Below, on the left, you’ll find a black and white image of Ms White and on the right, her “likeness” that was used in Samsung advertising campaign.

Judge Alex Kozinski wrote opinion for Vanna White v. Samsung, 989 F.2d 1512, 26 U.S.P.Q.2d 1362, 21 Media L. Rep. 1330 (9th Cir. 1993), which was the petition for rehearing in the above mentioned case. You may already know that I like his style and I often cite his profound deliberations as I did it in the post titled “Oh, those Internet’s contracts“.

Today, I read an old article available at www.nytimes.com website (January 2007) about Levi’s actions connected with protection of a trade mark consisting of a design for pant’s pockets and I immediately recalled myself a judgment of the Distric Administratice Court in Warsaw of 22 February 2006. Act signature VI SA/Wa 805/05.

Contrasted trade marks that are meant as signs for clothes (among other things for pants) resemble to each other to the extent that it may lead into the confusion of a consumer as regard to origin of goods in the regular course of trade (as defined in the article 9 sec. 1 pt 1 and 2 of the Act of 31 January 1985 on Trademarks (Dziennik Ustaw No 5, pos. 17 with later changes) if both marks include horizontal seams crossing down the pocket which in its shapes reasemble seagull’s (eagle) wings and where such element is simultaneously predominant for both signs.

I do not want to brag about myself but I wrote once in the post titled “The Law” that I want to write some article. You may wonder what has happened after almost two years since I’ve issued such statement?

Legal context: This article deals with most important legal questions regarding graffiti. It seeks to identify issues that may arise in copyright and trade mark law. The analysis is based on selected international, Polish, UK, US and European Union regulations.

Key points and practical significance: The social phenomenon known as graffiti is not legally indifferent. However, there are few articles dealing with those issues relevant in IP law. The author presents a short overview of the contemporary graffiti movement. He then presents important IP legal problems that may arise as regards to graffiti activity and briefly analyzes those issues relevant to domestic and international legal regimes.

Key Words: Most graffiti is illegal, but that does not mean that interesting IP questions do not arise in relation to this cultural phenomenon. Following a short overview of the contemporary graffiti movement, the author article seeks to analyse some of the basic questions that arise concerning copyright protection and industrial property law. The author calls for a more focused analysis in the future of this controversial problem.

T. Rychlicki, Legal questions about illegal art, Journal of Intellectual Property Law & Practice 2008 3(6):393-401; doi:10.1093/jiplp/jpn058.

Adidas Am., Inc. v. Payless Shoesource, Inc., 3:01-cv-01655 (D. Or. Nov. 8, 2001). $305 million judgment. The issue was a trade mark infringement of 3 stripes. So, that’s more than $100m per stripe as Marty Schwimmer has noted. There are some documents related to this case at Marty’s website too. Adidas is very protective when it comes to this sign/mark. As an example you may read cases that were brought before The Court of Justice of the European Communities. C-102/07, adidas and adidas Benelux.

First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the requirement of availability cannot be taken into account in the assessment of the scope of the exclusive rights of the proprietor of a trade mark, except in so far as the limitation of the effects of the trade mark defined in Article 6(1)(b) of the Directive applies.

C-408/01, Adidas-Salomon AG and Adidas Benelux BV v. Fitnessworld Trading Ltd., OJ C 304, 13.12.2003, p. 5.

1. A Member State, where it exercises the option provided by Article 5(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, is bound to grant the specific protection in question in cases of use by a third party of a later mark or sign which is identical with or similar to the registered mark with a reputation, both in relation to goods or services which are not similar and in relation to goods or services which are identical with or similar to those covered by that mark.

2. The protection conferred by Article 5(2) of Directive 89/104 is not conditional on a finding of a degree of similarity between the mark with a reputation and the sign such that there exists a likelihood of confusion between them on the part of the relevant section of the public. It is sufficient for the degree of similarity between the mark with a reputation and the sign to have the effect that the relevant section of the public establishes a link between the sign and the mark.

3. The fact that a sign is viewed as an embellishment by the relevant section of the public is not, in itself, an obstacle to the protection conferred by Article 5(2) of Directive 89/104 where the degree of similarity is none the less such that the relevant section of the public establishes a link between the sign and the mark. By contrast, where, according to a finding of fact by the national court, the relevant section of the public views the sign purely as an embellishment, it necessarily does not establish any link with a registered mark, with the result that one of the conditions of the protection conferred by Article 5(2) of Directive 89/104 is then not satisfied.

Well, what can I say? Such marks and sign will always bring public controversy. I can unmodestly recommend you my post titled “Non-traditional trademarks in Polish case law” and “Reclaim Magenta“.

MDY v. Blizzard, 2:06-cv-02555-DGC (D. Ariz. Oct. 25, 2006). More details, comments and materials are available at www.publicknowledge.org and at free and irreplaceable www.justia.com websites.

Would you like to know how it looks in Poland? In short. The Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes.

Art. 75. 1. Unless otherwise provided in the contract, the acts specified in paragraph 4(1) and (2) of Article 74 shall not require the consent of the owner of rights where they are necessary for the lawful acquirer to be able to make use of the program according to its intended purpose, including the correction of errors.
2. The following acts shall not require authorization from the owner of rights:
(1) the making of a backup or reserve copy insofar as such a copy is necessary for the use of the computer program; unless otherwise provided in the contract, the copy may not be used at the same time as the computer program;
(2) analysis and study of and experimentation with the operation of the computer program by the person authorized under the contract to make use of a copy of the program, in order to ascertain its underlying ideas and principles, if the person concerned performs the above acts at the time of the operations associated with the loading, display, running, transmission or storage of the computer program;
(3) reproduction of the code or translation of the form thereof within the meaning of paragraph 4(1) and (2) of Article 74 where this is essential to the securing of the information necessary to achieve interoperability between an independently created computer program and other programs, and provided that the following conditions are met:
(a) the acts are performed by the licensee or by another person enjoying the right to use the copy of a program or, on their behalf, by a person authorized to do so;
(b) the information necessary to achieve interoperability was not already easily and rapidly accessible to the persons referred to under (a);
(c) the acts are confined to those parts of the original program that are necessary to achieve interoperability.
3. The information referred to in paragraph 2(3) may not be:
(1) used for purposes other than the achievement of the interoperability of the independently created computer program,
(2) communicated to other persons except where that should prove essential to the interoperability of the independently created computer program,
(3) used for the development, production or marketing of a computer program the form of which is essentially similar, or for any other act in violation of copyright.

I started an academic platform called www.lawinit.com together with dr Wojciech Wiewiórowski and thanks to great help of Marcin Sochacki and Marcin Czerwiński. We think about English version too so if you are interested in such academic cooperation then you are warmly welcomed. Meanwhile, among other things there are great translations of German courts judgments provided by Justyna Kurek.

This post was inspired by a question and request I have recieved from my nice friend. I must admit that the Polish case law is not too rich in decisions regarding the issue of non-traditional trade marks, however some judgments are worth mentioning.

1. Three-dimensional marks

The judgment of the Supreme Administrative Court of 29 June 2005. Act signature II GSK 92/05.

The interpretation of articles 4 and 7 of the Act on Trademarks should be made in accordance with article 3(1)(e) of the First Directive 89/104. According to this article, signs which consist exclusively of the shape which results from the nature of the goods themselves shall not be registered or if registered shall be liable to be declared invalid. This regulation should be interpreted in the manner that signs which consist exclusively of the shape of goods shall not be registered if it is proven that basic, functional features of such shape are assigned only to technical characteristics.

This judgment concerned


2. Trade dress

The judgment of the Provincial (Voivodeship) Administrative Court in Warsaw of 2 March 2006. Act signature VI SA/Wa 1705/05.

I. According to article 30 of the Act on 31 January 1985 on Trademarks (Dz. U. No 5, pos. 17 with later changes), a legal interest to demand the invalidation of a trademark registration is afforded to an entity which derives such right from a competence to fill for trademark registration, use of a trademark or to demand the invalidation of a trademark registration for the sake of the collision with its own rights.
II. There is a presumption of good faith and bad faith has to be proven. There is an assumption that someone is acting in bad faith if he or she has the awareness of discrepancy of the situation with the law or as a result of his or her negligence in knowledge about the legal situation.
III. In accordance with the well established doctrine, practice and case law, a trade mark according to article 7 and article 9 sec. 1 pt 1 and 2 of the Act on Trademarks, should be examined as a whole. It is not allowed to test only one element of the complex sign, for instance the graphic, without taking into the consideration of the word elements of the sign, or doing it insufficient way. Therefore, if the Polish Patent Office examines individual elements of a sign, it should in next, to put them together and to draw the final conclusions.

and the judgment of the Supreme Administrative Court of 20 February 2007. Act signature II GSK 247/06, in which the SAC rejected a cassation complaint brought by the K. Company.

It can not be assumed that in case of word-graphic signs, a word element of such sign has a decisive character because it is easy to remember and to communicate. While assessing the similarity of signs one has to take into the consideration a general impression which compared signs exert on the consumer.

This judgment concerned TERRAVITA trade mark (R-142204).

I’m still not so certain if this trade mark (trapezoid box/packaging for a bar of chocolate with characteristic rectangle “window” at the front which allows the consumer to see the texture of the chocolate) should be perceived as “trade dress” as it was discussed by the SCOTUS in its judgment in the case Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992). Maybe it is a three-dimensional sign/trade mark? We may discuss.

3. Single colour

The judgment of the Provincial (Voivodeship) Administrative Court in Warsaw of 3 August 2005. Act signature VI SA/Wa 1482/04.

A single colour is not able by its nature to independently distinguish goods of individual entrepreneurs. But, even if a single colour is devoid of any distinctive character according to article 3(1)(b) of the First Directive, it may acquire such a distinctive character in relation to goods by use of such coulour. This factor should be considered when assessing the registerability of a single coulour as a trademark.

This judgment concerned separate Color RED Pantone 485 C for goods in class 30 such as confectionery, chocolate confectionery, sweets.

4. Composition of colours

The judgment of the Supreme Administrative Court of 23 November 2004. Act signature GSK 864/04.

According to article 4 sec. 1 and article. 7 sec. 1 of the Act on 31 January 1985 on Trademarks undefined trademark, which is not represented in one form, does not possess any sufficient ability to distinguish goods.

This judgment concerned a trade mark that was filled according to the Madrid system of international registration of marks. The sign was presented as double coulour composition (lower part in orange, top part in white).

Some tips for trademark owners and their plenipotentiaries are available in the recent post published at Class46 website.

According to article 169(1)(i) of the Act on Industrial Property Law, the date of lapse of the right of protection for a trademark is set on the last day of a period of five successive years, counting from the first date of non-use.

Article 169(1)(i) of the Polish Act of 30 June 2000 on Industrial Property Law (Ustawa Prawo własności przemysłowej z dnia 30 czerwca 2000 r.) published in Dziennik Ustaw 2001 No 49, pos. 508, consolidated text of 13 June 2003, Dziennik Ustaw No 119, pos. 1117, with later changes.

1. The right of protection for a trademark shall also lapse:
(i) on failure to put to genuine use of the registered trademark for the goods covered by the registration for a period of five successive years, unless serious reasons of non-use thereof exist,

The Polish Supreme Administrative Court was asked the following important question. Whether the date of lapse of the right of protection for a trademark should be the last day of a period of five successive years (as mentioned in Article 169(1)(1) of the IPL) or the day when the motion to declare the expiration of trade mark rights was filled, if the period of five successive years of non-use of a registered trade mark was longer then five years.

I found it in the post available at www.boingboing.net website.

The State of Oregon is sending out cease and desist letters to sites like Justia and Public.Resource.Org that have been posting copies of Oregon laws, known as the Oregon Revised Statutes.

We’ve sent Oregon back two letters. The first reviews the law and explains to the Legislative Counsel why their assertion of copyright over the state statutes is particularly weak, from both a common law perspective and from their own enabling legislation.

The position of the Legislative Counsel is that their public access obligations have been fulfilled by their web site. However, their web site has over 500,000 HTML errors, does not meet Section 508 accessibility requirements, has no metadata, as our second letter points out.

Particularly galling is the fact that Thomson West has also made a copy of these statutes and has done so without a commercial license, but the Legislative Counsel explicitly told Tim Stanley of Justia that they weren’t going to send cease and desist letters to West. Evidently, it is much easier to pick on the little guys.

Oregon is not unique in asserting copyright over state law, but they are definitely one of the more aggressive in this kind of FUD campaign. Justia and Public.Resource.Org have decided this is an important issue to resolve and we’re going to hold firm on this. Anybody else who is making a mirror of the Oregon law should drop me a line and let me know.

The original letter can be found at www.scribd.com website. Would you like to know how it looks in Poland? In short. The Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes.

Art. 4. The following shall not be protected by copyright:
1) normative texts and the drafts thereof,
2) official documents, documentary material, devices and symbols,
3) descriptions of patents and other protection titles,
4) simple press news.

You can perform the legal interpretation for yourself.

There is a short article availabe at www.wired.com website where you may read about some thoughts of Harry Sintonen regarding security of couple of websites. As from the media point of view the most spectacular cross-site scripting attack concerned CIA’s website. But I found on Harry’s list other addresses that are worthy a short notice here, for instance, the official website of the European Parliament. You may ask why? Because there is another article available at www.gazeta.pl website (in Polish language) where Waldy Dzikowski (the chief of Platforma Obywatelska’s parliamentary club) tells about how he opts about electronic elections to the European Parliament which will be held in another thirteen months. I have to admit that I am not sure who is supporting Mr Dzikowski because there is always someone who has the interest to supply the Republic of Poland with e-voting infrastructure or as Witold Drożdż from the Ministry of Interior and Administration said “technical and organization” infrastructure. When I think about such problems as faced by the CIA or European Parliament websites then I instantly wonder if someone can assure me about security and what is even more important about the lack of frauds in the process of electronic voting? Of course, we have proper crminal provisions against crimes aimed at voting process in the Polish Penal Code of 6 June, 1997. Dziennik Ustaw No 88, pos. 553, with later changes.

Chapter XXXI. Crimes against elections and referendum
Art. 248.
Article 248. Whoever, in connection with elections to the Sejm, Senate, election of the President of the Republic of Poland, elections to European Parliament, local elections or referendum:
(…)
3) damages, hides or forge reports or other election or referendum documents,
(…)
4) interferes or allow to interfere with the collecting or counting votes
(…)
5) gives another person unused voting card before an end of voting or gets an unused voting card from another person in order to use it in voting,
- shall be subject to the penalty of deprivation of liberty for up to 3 years.
(…)
Art. 250a. § 1. Whoever, being entitled to vote, gets financial or personal benefits or requests such benefit for voting in a given way, shall be subject to the penalty of deprivation of liberty for a term of between 3 months up to 5 years.
§ 2. The same penalty should apply to a person which gives financial or personal benefits to a person entitled to voting in order to induceaby such person to vote in a given way or for voting in a given way.

Art. 251. Whoever, in violation of regulations on secrecy of votiong, against the will of a voter, acquaints with the content of a vote, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

As you can see there are some possibilities. There are also “anti-compromise” regulations (sic!)

Chapter XXXIII. Crimes against protection of information
(…)
Article 267.
§ 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 2. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.
§ 3. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1 or 2 discloses to another person.
§ 4. The prosecution of the offence specified in § 1 – 3 shall occur on a motion of the injured person.
(…)

Art. 268a. § 1. Whoever, without being authorised to do so, destroys, damages, removes, changes lub makes an access to data difficult or in a significant way disrupts or prevents from the automatic process, gathering or transmission of such data, shall be subject to the penalty of deprivation of liberty for up to 3 years.
(…)

Art. 269.§ 1. Whoevery, damages, removes or changes information data of particular importance for country’s defences, safety of transportation, function of governmen administration, other state’s organ or state’s institution or local government albo zakłóca disrupts or prevents from the automatic process, gathering or transmission of such data, shall be subject to the penalty of deprivation of liberty for a term of between 6 months up to 8 years
§ 2. The same penaly should apply to a person who commits offences mentioned in § 1, by destroying or replacing the information carrier or by destroying or damaging a device serving for automatic processing, gathering or transfering of information data.

Art. 269a. Whoever, without being authorised to do so, by transmission, destroy, removing, damaging or changing information data, in significant manner disrupts the work of a computer system or a teleinformatic network, shall be subject to the penalty of deprivation of liberty for a term of between 3 months up to 5 years

Art. 269b. § 1. Whoever, produces, acquires, sells off or makes available to other persons devices or computer software adapted to perform a crime mentioned in art. 165 § 1 pt 4, art. 267 § 2, art. 268a § 1 or § 2 in connection with § 1, art. 269 § 2 or art. 269a, and computer passwords, access codes or other data that allow for the access to information stored in a computer system or teleinformatic network, shall be subject to the penalty of deprivation of liberty for up to 3 years.

This list is really long right? I asked my Polish readers if they know any cases regarding such crimes. I guess we have a really small percentage. The question is if it’s a really small percentage of crime detection or such crimes itself?