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Archive for: Directive 98/71/EC

Industrial design and trade mark law, case II GSK 481/09

July 14th, 2010, Tomasz Rychlicki

This is the continuation of the history described in “Industrial design and trade mark law, case VI SA/Wa 710/08“. The Polish company decided to file a cassation complaint to the Supreme Administrative Court, hoping the Court would clarify the interpretation of article 117(2) of the IPL.

The Supreme Administrative Court in its judgment of 15 May 2010, case file II GSK 481/09 ruled that there is no issue of wrong implementation of article 11 of the Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs. The Court noted that even the preamble of Design Directive explicitly states that Member States should remain free to fix the procedural provisions concerning registration, renewal and invalidation of design rights and provisions concerning the effects of such invalidity. Therefore, there is no need to refer a question to the Court of Justice of EU for a preliminary ruling. The SAC did not agree with arguments that the issue of finding that the exploitation of the industrial design infringes third parties’ personal or author’s economic rights shall be decided by civil court and not by the PPO. The question of similarity of the questioned design and 3D trade mark should also be decided by the PPO. The Court did not follow arguments presented by the General Court in its judgment of 12 May 2010 in case T-148/08, Beifa Group Co. Ltd v Office for Harmonisation in the Internal Market, Schwan-Stabilo Schwanhaüßer GmbH & Co. KG. However, the SAC did agree with the Polish company that facts of the case were not handled properly by the Voivodeship Administrative Court. Therefore, the SAC annulled the questioned judgments and returned the case to the VAC for reconsideration and ordered the Polish Patent Office to pay the Polish company a reimbursement of costs of the cassation compliant.

Telecommunication law, case C‑99/09

July 2nd, 2010, Tomasz Rychlicki

The Court of Justice of the European Union in its judgment of 1 July 2010, Case C‑99/09, Polska Telefonia Cyfrowa sp. z o.o. v. Prezes Urzędu Komunikacji Elektronicznej, ruled that article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) is to be interpreted as obliging the national regulatory authority to take account of the costs incurred by mobile telephone network operators in implementing the number portability service when it assesses whether the direct charge to subscribers for the use of that service is a disincentive. However, it retains the power to fix the maximum amount of that charge levied by operators at a level below the costs incurred by them, when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility.

Polish case law on industrial designs

January 12th, 2010, Tomasz Rychlicki

Below, you will find a list of judgments on industrial designs that were decided upon in administrative proceedings. Finding cases that are decided upon in civil proceedings is more problematic becasue they are rarely available to general public. You can find a more detailed discussion on each judgment under the link provided with the case file. All judgments are given in chronological order.

- The judgment of the Voivodeship Administrative Court (VAC) in Warsaw of 16 June 2010, case file VI SA/Wa 134/10. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Voivodeship Administrative Court in Warsaw of 27 May 2010, case file VI SA/Wa 506/10. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Voivodeship Administrative Court in Warsaw of 12 May 2010 case file VI SA/Wa 599/10.

- The judgment of the Voivodeship Administrative Court in Warsaw of 12 May 2010 case file VI SA/Wa 598/10.

- The judgment of the Voivodeship Administrative Court in Warsaw of 11 May 2010 case file VI SA/Wa 504/10.

- The judgment of the Voivodeship Administrative Court in Warsaw of 26 February 2010, case file VI SA/Wa 34/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Voivodeship Administrative Court in Warsaw of 23 February 2010, case file VI SA/Wa 1038/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Supreme Administrative Court of 20 January 2010, case file II GSK 323/09.

- The judgment of the Supreme Administrative Court of 16 December 2009, case file II GSK 238/09. This judgment was issued on the basis of the cassation complaint brought from the judgment of the Voivodeship Administrative Court in Warsaw, of 11 December 2008, case file VI SA/Wa 1827/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 15 December 2009, case file VIII SA/Wa 332/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The decision of the Supreme Administrative Court of 9 December 2009, case file II GSK 772/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 19 November 2009, case file VI SA/Wa 703/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Voivodeship Administrative Court in Warsaw of 13 November 2009, case file VI SA/Wa 1376/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 9 October 2009, case file VI SA/Wa 189/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 29 September 2009, case file VI SA/Wa 211/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 19 August 2009, case file VI SA/Wa 664/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 10 June 2009, case file VI SA/Wa 498/09

- The judgment of the Voivodeship Administrative Court in Warsaw of 21 July 2009, case file VI SA/Wa 518/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 8 June 2009, case file VI SA/Wa 536/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 2 June 2009, case file VI SA/Wa 502/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 4 April 2009, case file VI SA/Wa 109/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 4 February 2009, case file VIII SA/Wa 332/08.

- The judgment of the Supreme Administrative Court of 27 January 2009, case file II GSK 612/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 11 December 2008, case file VI SA/Wa 1827/08. The cassation compliant bought before the Supreme Administrative Court was rejected in a decision of 16 December 2009, case file II GSK 238/09.

- The judgment of the Voivodeship Administrative Court of 21 November 2008, case file VI SA/Wa 710/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 4 November 2008, case file VI SA/Wa 1053/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 11 August 2008, case file VI SA/Wa 1088/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 10 June 2008, case file VI SA/Wa 543/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 4 November 2008, case file VI SA/Wa 1054/08.

- The judgment of the Supreme Administrative Court of 20 March 2007, case file II GSK 277/06, published in the electronic database LEX, under the no 321283.

- The judgment of the Supreme Court – Civil Chamber of 23 October 2007, case file II CKS 302/07.

- The judgement of the Voivodeship Administrative Court in Warsaw of 11 October 2007, case file VI SA/Wa 1215/07.

See also “Polish regulations on industrial designs“.

Industrial design, case VI SA/Wa 498/09

June 18th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 10 June 2009, case file VI SA/Wa 498/09, ruled that the document based on the industrial property rights is assigned to more serious legal consequences than a document issued on a different legal basis. It was the result of the erga omnes protection of intellectual property rights. The right in registration does not cover the appearance or characteristics of a design, which arise solely from a technical function, or those which are necessary to connect such a product. Nevertheless, in Court’s opinion that was based on the interpreation of the text of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs, there is no reason to exclude the individual features (also these which are conditioned by technical functions they perform, so being excluded from protection) to assess the overall impression.

This case concerned the industrial design “Listwa osłonowa” (in English: lath curly), Rp-9605.

Wzór Przemysłowy 9605

See also my post entitled “Polish case law on industrial designs“.