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Polish notaries are allowed to run websites of their offices

January 15th, 2010, Tomasz Rychlicki

In a resolution of February 2008, the Polish National Notarial Council allowed its members for establishing Internet websites of their notarial offices. However, the Council of the Chamber of Notaries in Warsaw in the resolution of June 2009 decided that the establishment by notaries of their individual websites or posting data on webpages other than the council’s one is prohibited advertising. The Council ordered the shutdown of such websites and notaries who would not follow the resolution were subject to disciplinary proceedings.

In the article entitled “Notariusze mogą mieć strony internetowe“, the Polish newspaper Rzeczpospolita reports that the Polish Minister of Justice who exercises the supervision over the notaries’ self-government challenged the resolution to the Supreme Court. The PMJ argued that the Act of 14 February 1991 Law on Notaries, Journal of Laws (Dziennik Ustaw) of 2002 No 42 item 369, with later changes, does not allow the councils of chambers to take such restricting resolutions and although the government has the right to set the rules for its profession, but it is executed by the National Notarial Council, and not by the council of the chamber in Warsaw, Gdańsk or in Poznań. The resolution took by the the Council of the Chamber of Notaries in Warsaw divides Polish notaries on the better who are allowed to run their websites and and the worse, which may not do it. During the court’s hearings the representatives of the Warsaw provided very interesting arguments, for instance, that the opeartion of a website in Lublin has other meaning than opearating such website in Warsaw. The council of the chamber supervises the observance by notaries of the solemnity and dignity of their profession and the Internet website is a prohibited form of advertising, which is contrary with the principles of the exercise profession.

The Supreme Court in a judgment of 14 January 2010, case file III ZS 4/09, annulled the contested decision of June 2009. The SC firmly stressed that the Law on Notaries has created only one, not many local governments, which is formed by the local chambers and the National Council, and they are not independent to each other. The resolutions of the National Council are addressed to all notaries, including Warsaw’s. The council of the chamber cannot independently determine what is a disciplinary offense, because it is included in the Code of Ethics.

Advertising of pharmaceuticals, case VI SA/Wa 1758/09

January 6th, 2010, Tomasz Rychlicki

The Polish court issued a first judgment regarding TV/radio sponsored programmes and advertising of pharmaceutical products. US Pharmacia Company prepared a TV spot that was aired with a TV show. The following statement appeared in the spot:

The programme is sponsored by the manufacturer of Apap Noc medicine. Apap Noc – now also available in the big package. Combats pain and helps you fall asleep.

According to article 17(1) of the Polish Act on Broadcasting – LOB – (in Polish: Ustawa o radiofonii i telewizji) of 29 December 1992, Journal of Law (Dziennik Ustaw) of 1993, No 7 item 34, consolidated text of 19 Novemver 2004, Journal of Laws (Dziennik Ustaw) No 253 item 2531, with later amendments, sponsored programmes or other broadcasts shall be identified as such by sponsor credits at their beginning or end. Such credits may specify only the sponsor’s name, business name, trademark or contain some other identification of the business operator or its business activities, the image of a single product or service. According to article 4 pt. 7 of the LOB, the “sponsorship” shall mean a direct or indirect financing or co-financing of the production or transmission of a programme or other broadcasts by an entity other than the broadcaster or producer of the programme, with a view to establishing, enhancing or promoting the renown of the name, business name, product or service, trademark.

The Polish Act on Pharmaceutical Law – PHL – (in Polish: ustawa prawo farmaceutyczne) of 6 September 2001, published in Journal of Laws (Dziennik Ustaw) of 2008, No 45, item 271, with later amendments, does not include provisions relating to sponsorship of programs or other broadcasts in radio and television.

The Main Pharmaceutical Inspector (MPI) is the central organ of public administration authorized to ensure compliance with pharmaceutical regulations in the context of advertising. According to MPI many pharmaceutical companies are trying to skip the strict sponsorship rules for advertising of pharmaceutical/medicinal products. MPI has already delivered several decisions requiring pharmaceutical companies to immediately cease advertising of medicines, and only US Pharmacia appealed this decision to the Voivodeship Administrative Court. The company argued that the spot was aimed at enhancing the reputation of the medicinal product. The MPI argued that it is unacceptable to add any other indications relating to both the sponsor and the subject of its activities, in particular the goods and services. Such behaviour turns sponsorship into advertising activity.

The VAC in a judgment of 18 December 2009, case file VI SA/Wa 1758/09, ruled that the sponsorship cannot be used as unacceptable advertisement. It has to be a form of promotion separated from advertising. The content and meaning of communication and the message broadcasted decides whether we are dealing with advertising or with corporate sponsorships. The Court also emphasized that each advertising of medicinal product has to be made in accordance with the current Regulation of the Minister of Health on the advertising of medicinal products of 21 November 2008, Journal of Laws (Dziennik Ustaw) No 210 item 1327. The advertising of a medicinal product targeted to the public must contain the following essential information:

the name of the medicinal product
the INN of the active substanc, in the case of medicinal products containing more than 3 active substances, the term “complex product”
the dose of the active substance or active substance concentrations, with the exception of a complex product
pharmaceutical form of the product
indication or indications for therapeutic use
contra-indications
identification of the responsible entity

The advertising of medicinal product targeted to the public that is made in the audio-visual form additionally has to contain a warning of the following content:

Before use read the leaflet included in the package or consult with your doctor or pharmacist, as each drug that was used improperly may threaten your life or health.

This warning shall be placed in the bottom of the ad, in terms of representing not less than 20% of its surface, so as to make the text stand out from the background plane visible, legible, motionless, placed horizontally, the distance of letters from the top and bottom edge of the background plane ad cannot be bigger than 1/2 in height and the distance between the lines of the string cannot be bigger than the height of the letters. This warning must be read clearly in the Polish language and it has to appear on the screen no less than 8 seconds. The same rules regarding the warning apply to the advertising of a medicinal product targeted to the public that was prepared as a sound message.
Advertising product targeted to the public in a static visual form, shall contain a warning stating:

Before use read the label, which includes indications, contra-indications, data on adverse effects and dosage and information about the medicinal product, or consult a doctor or pharmacist, as each drug used improperly threatening your life or health.

The Warning shall be placed in the bottom of the ad, in terms of representing not less than 10% of its surface in such a way as to make the text stand out from the background plane visible, legible, motionless, placed horizontally, the distance of letters from the top and bottom edges of the background plane of the ad cannot be bigger than 1/2 in height and the distance between lines of the inscription cannot be bigger than the height of the letters. In the case of advertising to the public in a visual form which includes more than one page, a warning has to be placed on the first page.

See also my posts entitled “Polish regulations on pharmaceutical trade marks” and “Polish case law on advertising of pharmaceuticals“.

New logo for Euro 2012

December 15th, 2009, Tomasz Rychlicki

Yesterday, football (and I do not want to be accused of “blasphemy” by WHITE SOX supporters so I have to add that it’s “soccer” for our US readers) fans were given a chance to become brands’ critics.

The official logo, visual identity and slogan for UEFA EURO 2012™ have been unveiled at a special event in Kyiv’s Mykhailivska Square with co-hosts Ukraine and Poland looking forward to “Creating History Together”.

I have previously reported some news with regard to Euro 2012 in posts such as “Poland: special law for Euro 2012 trade marks?“, “Poland: big Euro 2012 names“, “Poland: one beer for Euro 2012” and “Apple against Euro 2012“.

Categories: Class46 post | advertising | advertising law | brands | movies.

Poland: reclaim the windows – the saga continues

December 1st, 2009, Tomasz Rychlicki

A year ago, I have published a short post entitled “Reclaim the windows” and the life, being a constant state of change, has written the rest of this story, which I feel obliged to report on.

On 27 November 2009, Cezary Grabarczyk, the Polish Minister of Infrastructure signed the amendment to the Regulation on technical conditions of use of residential buildings, (in Polish: Rozporządzenie zmieniające rozporzadzenie w sprawie warunków technicznych użytkowania budynków mieszkalnych) of 27 November 2009, published in Journal of Laws (Dziennik Ustaw) of 1999 No. 74, item. 836. The provisions of this amendments govern the possibility of installing big media advertising boards and vinyl’s mesh on which different advertisements are displayed and other devices not related to the use of housing in the multi-family residential buildings.

A multi-family residential building should be used in such a way that its rooms have no restrictions to daytime lighting. The provisions allow only for the installation of equipment and advertising space on the walls without windows, the windows of the staircases or commercial premises. However, the prohibition does not apply in the case of construction works on the building’s facade. The amendments will eliminate the negative impact that big media advertisings placed one housing buildings have on their occupants.

The Regulation enters into force after 14 days from the date of promulgation. All kind of advertising devices and media and other devices not related to the use of the building or apartment that were installed on residential flats before the entry into force of the aforementioned provisions will stay, but not longer than 18 months from the date of entry into force.

Categories: Class46 post | Polish law | advertising | advertising law.

Poland: display dates directly

November 26th, 2009, Tomasz Rychlicki

In the article entitled “Termin konkursu powinien być realny“, the Polish newspaper Rzeczpospolita reports a recent case of a buyer of CHIO CHIPS that are produced by The Lorenz Bahlsen Snack-World. He filed a complaint to the representation of the Office of Competition and Consumers Protection in Wrocław. This dissatisfied consumer argued that being in the shop, he chose CHIO chips and not the other products that were sold in a similar price because he was attracted by a draw where he could win some nice prizes. However, he became disappointed because when he did open the package and read the coupon, it turned out that the draw was already over. The date of the draw was shown on the inside part of a special bar attached to chips’ bag, but it could be difficult to read after the break of the package.

Because of the lack of a clear declaration with regard to the end date of the draw, the Company was fined 22000 PLN for the practice of contravention of collective interests of consumers. According to the Polish Act on Protection of Competition and Consumers – APCC – (in Polish: Ustawa o ochronie konkurencji i konsumentów) published in Journal of Laws (Dziennik Ustaw) No. 50, item 331, with later amendments, it was a violation of the obligation to provide consumers with reliable, true and complete information regarding the product.

The Polish Competition and Consumer Protection Court upheld the contested decision in its judgment, case file XVII Ama 125/08. Such essential information as the period of promotion/draw or the validity date of the product cannot be hidden inside the bar of the package and thus not visible at first glance. Such information must be readily available. The Court ruled that the date of a draw should be indicated clearly on the product packaging and incomplete information is misleading. The judgment is not final yet, the company may file an appeal.

Meta tags in Polish case law

October 8th, 2009, Tomasz Rychlicki

The French company Marin’s International brought a case before the Court for the Community Trade Marks and Community Designs, located in Warsaw (in Polish: Sąd Okręgowy w Warszawie Wydzial XXII Sąd Wspólnotowych Znaków Towarowych i Wzorów Przemysłowych). The issue concerned the use of CTMs Marin’s and Lama by the Polish company Display Flash Poland sp. z o.o., within its website in NOSCRIPT tag. The Court in a judgment case file XXII GWzt 8/09, ruled that the use of someone else’s trademark in website’s metatags infringes trade mark rights of such person, and such behaviour may be also deemed as an unfair competition delict.

I know that I should mention the opinion of the Advocate General Poiares Maduro of 22 September 2009 in joined cases C‑236/08, C‑237/08 and C‑238/08, Google France, Google Inc. v. Louis Vuitton Malletier, Google France v. Viaticum, Luteciel and Google France v. CNRRH, Pierre Alexis Thonet, Bruno Raboin, Tiger, a franchisee of Unicis.

(1) The selection by an economic operator, by means of an agreement on paid internet referencing, of a keyword which will trigger, in the event of a request using that word, the display of a link proposing connection to a site operated by that economic operator for the purposes of offering for sale goods or services, and which reproduces or imitates a trade mark registered by a third party and covering identical or similar goods, without the authorisation of the proprietor of that trade mark, does not constitute in itself an infringement of the exclusive right guaranteed to the latter under Article 5 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks.

(2) Article 5(1)(a) and (b) of Directive 89/104 and Article 9(1)(a) and (b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that a trade mark proprietor may not prevent the provider of a paid referencing service from making available to advertisers keywords which reproduce or imitate registered trade marks or from arranging under the referencing agreement for advertising links to sites to be created and favourably displayed, on the basis of those keywords.

(3) In the event that the trade marks have a reputation, the trade mark proprietor may not oppose such use under Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94.

(4) The provider of the paid referencing service cannot be regarded as providing an information society service consisting in the storage of information provided by the recipient of the service within the meaning of Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’).

This is way more interesting if one realizes that almost month ago Google has announced that it doesn’t use the “keywords” meta tag in web search ranking.

Thou shall not infringe trade marks

January 14th, 2009, Tomasz Rychlicki

A new advertising agency has posted on its website a presentation of “the Decalogue ads”. The animation was done in Flash technology and it presented Apple’s trademark with “You shall have no other gods before me” sentence, Volvo trade mark with “You shall not kill”, Winiary trade mark “You shall not commit adultery”, Gerda trade mark “You shall not steal”. One of the founders of the agency said.

We did not want to offend anyone, but merely to rouse a debate in the industry. We did not ask advertisers about their opinion because we were acting in good faith and hoping for their high culture.

Well… I guess they should ask lawyers regarding articles 153 and 154 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.

Chapter 5
Rights of Protection for Trademarks

Article 153
1. The right of protection shall confer the exclusive right to use the trademark for profit or for professional purposes throughout the territory of the Republic of Poland.
(…)
Article 154
The use of a trademark shall, in particular, consist of:
(…)
(iii) using the trademark in advertising.

Poland: special law for Euro 2012 trade marks?

December 4th, 2008, Tomasz Rychlicki

In the article entitled “Nie każdy może skorzystać na Euro 2012“, the Polish newspaper Rzeczpospolita published recent news regarding Euro 2012 brands. According to Rzeczpospolita, all companies that would like to exploit the production of gadgets related to Euro 2012 will have to reckon on their limitations, because all the trade mark rights and patents belong to the Union of European Football Associations (UEFA). Their rights will be probably clarified by a special law.

Soon there will be available a manual for companies with instructions on how to obtain a licence to use the logo and name Euro 2012. It’ll be made on the model of the manual for the 2012 Olympic Games in London. PL 2012 (which is the coordinator and overseer of preparation undertakings for Euro 2012 in Poland) also wants to cooperate with the Police and Customs officers to eliminate imports of clothing that infringe on trade marks rights.

A major challenge for organizers will be ambush marketing, because examples of this kind of activity appeared during the championships in Austria and Switzerland. To avoid such problems there will be created a so-called “clean area” around stadiums, where companies which are competitors of the tournament sponsors will not be allowed to place their ads or logos and trade marks. Also, UEFA does not want to let online bookmakers to appear or being involved in sponsorship of Euro 2012. Accordingly, all ads of online bookmakers (formally, this kind of betting is banned in Poland) should disappear from the vicinity of stadiums.

Poland: big Euro 2012 names

October 24th, 2008, Tomasz Rychlicki

In the article entitled “Prawa do nazw stadionów na Euro 2012 warte 60 mln zł“, the Polish newspaper Gazeta Prawna published some news about Mirosław Drzewiecki’s (Polish Minister of Sport) plans to sell Euro 2012 stadiums names.

It has been estimated that by placing a brand in the name of the Polish national stadium could affect the site operator’s account about 3 million euro each year. Similar amounts are paid in the West. Allianz pays each year about 6 million euros for placing its name in the Bayern Munich stadium. The sale of names of Polish stadiums could thus earn about 60 million złoty.

According to information held by Gazeta Prawna, the largest companies which are known to engage in sports sponsorship, have expressed interest in this kind of promotion. The big names include Adidas, Orange, Plus GSM, Tyskie, Era, Red Bull, Lotos, Warka, Harnaś, Lech, Prokom, Lotto, Orlen, KGHM.

Categories: Class46 post | advertising | advertising law | brands.

Poland: new rules for medicines advertising

September 7th, 2008, Tomasz Rychlicki

In the article entitled “Przybędzie zakazów w reklamach leków“, the Polish newspaper Rzeczpospolita reports a recent legislative initiative regarding a draft regulation on advertising of medicinal products prepared by the Polish Ministry of Health. Monitors displaying ads may disappear from pharmacies. Advertising of any medicines will not be allowed in hospitals or pharmacies. The proposed draft especially concerns audio and audiovisual advertising. A similar ban exists in the current Regulation of the Minister of Health of 16 December 2002 on the advertising of medicinal products, Journal of Laws (Dziennik Ustaw) of 2002 No. 230, item 1936, however, it allows for advertising contained in radio and television programmes. There were assembled special monitors to broadcast TV spots in some pharmacies. Such exceptions will no longer be allowed , and the display of medicine advertising spots will become illegal.

The proposal also includes the types of advertising of medicinal products: i.e. advertising which is targeted to the general public or persons who are entitled to issue medical prescriptions or persons engaged in the marketing of medicinal products. The Ministry of Health has stresses that such specification will clearly defined market rules and will have a positive effects on fair competition.

Advertising in visual form must contain a warning.

Before use, read the label, which includes indications, contra-indications, data on side effects, dosage and information about the medicinal use of the product, or consult your doctor or pharmacist.

The warning has to be included in any part of advertising, on a flat surface which is not less than 10 percent of total surface area of the ad. The text must be distinguished from the background and it be legible. A warning in an audiovisual advertising has to be placed in the lower parts of the plane, which is not less than 20 percent of the total surface area. It must also be clearly legible in the Polish language and appear on the screen for not less than 5 seconds.