Archive for: threshold of creativity

Trade mark law, case Sp. 472/05

December 17th, 2012, Tomasz Rychlicki

Michael Ovadenko requested the Polish Patent Office to invalidate the right of protection for the word trade mark COFFEE HEAVEN R-147034 owned by Coffeeheaven International Plc. Mr Ovadenko argued that this registration infringed his copyrights.

The PPO decided to stay proceedings and ordered the applicant to come up with a petition to the civil court to determine the existence of his rights. Mr Ovadenko filed a suit before the District Court in Warsaw but it was dismissed. The Court held that the designation COFFEE HEAVEN cannot be deemed as a copyrighted work under the Polish Act on Authors Rights and Neighbouring Rights, according to which the object of copyright should be any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression (work). The appeal complaint was also dismissed.

The Adjudicative Board of the Polish Patent Office in its decision of 29 November 2012 case no. Sp. 472/05 dismissed the request. The decision is not final yet. The complaint may be filed before the Voivodeship Administrative Court in Warsaw.

Copyright law, case II CSK 527/10

June 6th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment of 25 May 2011 case file II CSK 527/10 held that a person who made some editorial changes of a scientific work that involved the removal of parts of dubious scientific value is entitled to claim the co-autorship of such a work. See also “Copyright law, case V CK 391/02

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case IV CSK 274/10

May 10th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment of 26 January 2011 case file IV CSK 274/10 held that creation of legal rules that are included in the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments, and that concern copyright agreements, does not exclude the applicability of the provisions of the Civil Code, especially particular chapters of the CC. The conclusion of contracts other than these provided for in the ARNR, mainly the contract of transfer of copyrights (i.e. all economic rights that are primarily attributed to the creator) or the contract for the use of the work (licences), is not excluded if the specificity of copyright is also taken into account. There was also no reason to exclude – in principle – the possibility to establish the lease on copyright, of course, after the conditions set in Article 709 of the CC have been satisfied.

Article 693. § 1. By a contract of tenancy, the landlord shall assume the obligation to give a thing to the tenant for use and the collection of fruits for definite or indefinite time, and the tenant shall assume the obligation to pay to the landlord the rent agreed upon.
§ 2. The rent may be stipulated in money or in performances of another kind. It may also be specified in terms of a fraction of the fruits.

Article 694. The provisions on lease shall apply respectively to tenancy with the observance of the provisions stated below.

Article 695. § 1. The tenancy concluded for a period longer than thirty years shall be deemed, after the lapse of that period, to be concluded for indefinite time.
§ 2. Repealed.

Article 696. The tenant shall exercise his right in accordance with the requirements of proper management and cannot change the designation of the object of tenancy without the consent of the landlord.

Article 697. The tenant shall be obliged to make repairs indispensable for maintaining the object of tenancy in a non-deteriorated condition.

Article 698. § 1. The tenant cannot, without the consent of the landlord, give the object of tenancy to a third party for gratuitous use nor for holding under a subtenancy.
§ 2. In the case of non-observance of the above obligation, the landlord may terminate the contract of tenancy without observing the time limit of the notice.

Article 699. If the time limit of the payment of the rent is not specified in the contract, the rent shall be payable after a time limit customarily accepted, and in the absence of such custom semiannually at the end of every period.

Article 700. If, as a result of circumstances for which the tenant is not liable and which do not pertain to him personally, the usual revenue from the object of tenancy is considerably reduced, the tenant may claim a reduction of the rent for the given economic period.

Article 701. The movable things covered by the statutory right of pledge vested in the landlord shall include the things used in the running of a farm or an enterprise if they are on the area of the object of tenancy.

Article 702. If it is stipulated in the contract that in addition to the rent the tenant shall have the obligation to pay taxes and bear other burdens connected with the ownership or the possession of the object of tenancy as well as to bear the costs of its insurance, the statutory right of pledge vested in the landlord shall also cover his claims to the tenant for the reimbursement of the sum paid by the landlord for the reasons specified above.

Article 703. If the tenant is in delay with the payment of the rent for at least two full periods of payment, and if the rent is payable annually, if he is in delay for more than three months, the landlord may terminate the contract of tenancy without observing the time limit for the notice. However, the landlord shall warn the tenant by setting him an additional time limit of three months for the payment of the rent in arrear.

Article 704. In the absence of a contract to the contrary, the contract of tenancy of agricultural land may be terminated one year in advance at the end of the year of tenancy, and another contract of tenancy, six months in advance before the lapse of the year of tenancy.

Article 705. After the termination of the tenancy, the tenant shall be obliged, in the absence of a contract to the contrary, to return the object of the tenancy in the condition in which it should be in accordance with the provisions on the exercise of tenancy.

Article 706. If, at the termination of the tenancy, the tenant of agricultural land leaves it sown according to his duty, he may claim the reimbursement of the outlays on those crops, where, contrary to the requirements of proper management, he did not receive the appropriate crops at the beginning of the tenancy.

Article 707. If the tenancy ends before the end of the tenancy year, the tenant shall be obliged to pay the rent in such proportion in which the fruits which he collected or could have collected bear to the fruits from the entire year of tenancy.

Article 708. The provisions of the present Section shall apply respectively where the person taking an agricultural immovable property for use and collection of fruits is not obliged to pay the rent but only to pay the taxes and to bear other burdens connected with the ownership or the possession of land.

Article 709. The provisions on the tenancy of things shall apply respectively to the lease of rights.

The lease would have to include at least one field of exploitation (the concept included in the Polish copyright law, where the owner has the right to dispose the use of a copyrighted work on different fields of use) and the associated possibility of obtaining benefits, for example, by allowing the lessee to display the copyrighted work for profits.

The Court ruled also that the exhibition of photographs can be a derivative work as defined in the Article 2(1) of the ARNR.

Art. 2.-1. Derived works made from the work of another, in particular translations, transformations and adaptations, shall be protected by copyright without prejudice to the rights in the original work.
2. The manner of disposal of the derived work and the use thereof shall be subject to the consent of the creator of the original work (dependent copyright), except where the economic rights in the original work have expired.
3. The creator of the original work may withdraw his consent if, in the course of the five years following its grant, the derived work has not been disclosed. Remuneration paid to the creator shall not be susceptible of repayment.
4. A work inspired by another’s work shall not be considered a derived work.
5. The name of the creator of the original work and the title thereof shall be mentioned on the copies of the derived work.

However, as in the case of other works, the final assessment depends on the outcome of the examination that was made in terms of statutory criteria for the work to be protected by copyright, taking into account that, while defining the derivatives, the basic prerequisite of creativity has to be taken into account.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case IV CR 127/7613

September 19th, 2010, Tomasz Rychlicki

The Supreme Court in its judgment of 5 October 1976 case file IV CR 127/7613 ruled that the photography is not protected by copyright, when it only serves as a registration of situation or occurrence. Such photo is taken by the author in clearly defined manner, by using well-defined standards, etc., and it lacks the threshold of creativity.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case IV CSK 359/09

September 17th, 2010, Tomasz Rychlicki

The Polish company KREA sp. z o.o. prepared a label design for yoghurt packaging that was commissioned by Wojciech Jurkiewicz. The Company contacted a freelance graphic deisgner to create word-figurative trade mark, which was to be placed on this packaging. KREA acquired all copyrights. Wojciech Jurkiewicz filed for trade mark registration but the PPO refused to grant the right of protection. Mr Jurkiewicz was also sued by KREA and the District Court ordered the defendant to cease the copyright infringement of economic rights owned by KREA to the word-figurative trade mark JOGI by deisisting from using of the sign in any form in the course of economic activity and ordered Mr Jurkiewicz to pay 51.000 PLN. The Appelate Court changed the judgment only by reducing the amount awarded to 15.000 PLN.


KREA also filed a suit against OBORY sp. z o.o., claiming copyright infringement of its word trade mark JOGI. The Company argued that the binding force of the judgment against Mr Jurkiewicz extends to a conclusion that JOGI word is deemed as a copyrightable work.


The Supreme Court in its judgment of 22 June 2010 case file IV CSK 359/09 held that only the dictum is the binding element of a judgment, not its motives, therefore, the previous judgment has no expanded legitimacy. It was not a reasonable argument that the earlier cited judgment in case against Wojciech Jurczyński would always be the official confirmation of the plaintiff’s copyright to a word sign. The idea for the word “JOGI” (which existed previously in the public domain) as a designation for drinking yoghurt, is nothing creative or original. The Court noted that the opinion that copyright law does not use the novelty condition in the objective sense, but in subjective terms, is dominating. The condition of work’s “originality” is satisfied if there subjectively exists a new product of the intellect. One may say about the self-creativity only if the created work was not previously known in the same form, and thus it manifests itself in an objectively tangible result of creativity. The approach presented by KREA, which lies almost on the presumption of fact that every product of human intellectual is a protected copyrightable work, without demonstrating of its creative elements, has no support in the ARNR and is too far reaching. In a wider perspective, such conclusion would be the risk of depreciation of the concept of creativity in general. In principle, a single word, not only these taken from everyday language, but also the unknown words or neologisms, do not have the characteristics of creativity. Only one-word titles, or slogans, may be exemption to the aforemtnioned rule when applied to specific situations, when they are characterized by a startling clarity and brilliance, make poetic of the whole work, are the “key” to understanding of such work. The Polish legal doctrine and case law have long since stopped using the term “pure art” and promoting the traditional cultural role, which the right had to serve. The concept of “copyright work” is recognized widely, with persistent tendency to mitigate the criteria governing the granting of copyright protection, such as creativity, originality and individuality. The evidence of such actions is presented in the protection of the products of which contain a small contribution to creative work, and characterized by even a small degree of originality and individuality. In this context, the concept of “boundary categories of works” is used and also – in principle – the possibility of granting copyright protection to small products of human activity that are designed for purely utilitarian and practical use, is not denied. The ARNR protects works created not only for artistic purposes and does not refuse the protection for works created solely for commercial (industrial, merchandising) purposes, but only in so far as the work has such characteristics that are required for any other copyrightable work. The utilitarian purpose of copyrightable works, created solely for the intended use in a certain way, is typical for the objects that are subject to industrial property rights, in particular industrial designs and trade marks In the case of the latter it most often applies to word-figurative trade marks. In Polish law it is permissible to accumulate of certain intangible property/econimic rights, including trademarks being also copyrightable works and industrial designs/copyrightable works.

In the opinion of the Supreme Court, the mere use of a word as a trade mark should not affect the possibility of its recognition as a copyrightable work, since the existence of such work cannot depend on its specific purpose. The way of using a given work does not decide on the statusu of its copyrightability. The word “JOGI” does not show originality, which could allow for an exception to the generally accepted principle that single words do not have creative characteristics. It has no autonomous characteristics of the copyrightable work, and it isn’t a copyrightable work because of someone “invented” a particular way of its use as a trade mark, or designation of a particular type of goods originating from a particular undertaking.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case I CR 312/75

May 22nd, 2010, Tomasz Rychlicki

The Supreme Court in its judgment of 19 September 1975 case file I CR 312/75 held that flower compositions (ikebana) were works of art within the meaning of the old Polish copyright law, and that the defendant by publishing of photographs of these compositions and their distribution infringed on authors’ rights (moral rights) of the creator of these compositions. In addition, the Court noted that the limitations of the rights to distribute works and to remuneration, governed by the old copyright law, in the name of social interest (use), meant that in the cases provided for in the cited provisions it was allowed to distribute copyrighted works, and use these works in principle, without paying remuneration, and thus deprive the holders of their rights.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case V CK 391/02

July 1st, 2008, Tomasz Rychlicki

The Supreme Court in its judgment of 7 November 2003 case file V CK 391/02, published in OSN 2004, No 12, item 203, ruled that introduction to the work, which was an academic textbook, non-substantive amendments, and changes that were merely stylistic or were made during proofreading, is not a manifestation of creative activity and does not justify the granting of the person who made such amendments, the status of a co-author.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Copyright law, case I CR 91/73

June 2nd, 2008, Tomasz Rychlicki

The Supreme Court in its judgment of 25 April 1973 case file I CR 91/73 ruled that the work of art becomes subject to copyright if it’s somehow fixed, i.e., if it takes any form, even if unstable and transient, but in so constant, so that the content and features of the work exerted artistic effect. The compositions of flowers (ikebana) meet this requirement. Therefore, it is not allowed to copy it without permission, inter alia, by photographic means, for any use other than personal use, in particular – for use in connection with the achievement of economic benefits.

See also “Polish regulations on copyright” and “Polish case law on copyright“.