Archive for: personal rights or interests

Personal interest, case III C 202/09

March 12th, 2012, Tomasz Rychlicki

Arnold Buzdygan sued Agora S.A. the owner and publisher of kobieta.gazeta.pl website, claiming that the company infringed his personal interest by publishing an online article entitled “Trolls – Internet’s vexatious personas” in which his name was mentioned. The District Court in Warsaw in its judgment of 12 December 2011 case file III C 202/09 dismissed the complaint and ruled that the criteria of the infringement of personal interests should be based on objective rather than subjective circumstances that usually arise from the feelings of the person concerned. The objective response of public opinion is more important in such case. The Court noted that Mr Buzdygan is a public person whose opinions and statements were subject to criticism by other users. Such negative comments were directed to his activities and comments posted on the Internet, and not directly against him.

See also “Computer crime, case V K 1595/08” and “Personal interest, case I ACa 949/09“.

Personal interest, case IX GC 367/11

February 27th, 2012, Tomasz Rychlicki

The company Polska Wódka (in English: Polish Vodka) from Warsaw sued two other companies Wódka Polska sp. z o. o. and Wódka Polska sp. komandytowa from Lublin (both companies are lined with Stock Spirits, former Polmos Lublin) for the infringement of the company name based on the regulations included in the Polish Civil Code that provides that the company name of the entrepreneur should differ sufficiently from the company names of other entrepreneurs that carry on their activities on the same market. The company name may not be misleading, in particular as regards the entrepreneur’s person, the object of their activity, place of activity and supply sources, and the Polish Act on Combating Unfair Competition which treats the use of the designation of the undertaking in a way which may mislead customers in relation to its identity, based on the use of trade mark, name, emblem, letter abbreviation or another characteristic symbol already lawfully used to indicate another undertaking, as the act of unfair competition.

Polska Wódka claimed that it has the priority to its company name based on the entry in the Register of Business Entities in the National Court Register (KRS). The name of Warsaw’s company was entered in 2003, and the company names of Lublin’s entities were entered accordingly in 2005 and 2009. Polska Wódka argued that both sued companies act intentionally in order to mislead other market participants.

Both defendants did not agree with the suit and argued that they obtained the right to use their company names under final and binging decisions of the registration court, and noted that Polska Wódka does not proved that it performs any business activity under its company name because there are no annual reports in the KRS that would serve as proof of use.

The District Court in Lublin in its judgment case file IX GC 367/11 dismissed the suit as unfounded. The Court agreed that the company from Warsaw was the first one to start the use of the questioned name, however, it did not provided any evidence of its use in order to prove the confusion of other market participants. The Court also ruled that the protection if afforded to designation that are put in genuine use, not to these that were only registered in the KRS. Finally, the Court noted that the name Polska wódka (Polish vodka) is descriptive term related to a product name that is connected with a specific business activity, and it cannot be appropriated by single company. The Court ruled that Polish vodka is a designation that should be in the public domain, in order to be available for different entities which wish to use such name for their products. The judgment is not final yet.

Trade mark law, case II GSK 1033/10

February 22nd, 2012, Tomasz Rychlicki

This is another part of the saga of trade marks consisting of numerals. On March 2003, Agencja Wydawnicza TECHNOPOL Spółka z o.o. applied for the word trade mark 100 PANORAMICZNYCH Z-261876 for goods in Class 16 such as newspapers, charade magazines, booklets, brochures, flyers, calendars, posters, exercise books.

The Polish Patent Office decided that it cannot grant rights of protection for signs which cannot constitute a trade mark, or are devoid of sufficient distinctive character. The PPO reminded that the following are 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, (iii) signs which have become customary in the current language and are used in fair and established business practices. TECHNOPOL filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in its judgment of 24 April 2010 case file VI SA/Wa 410/10. TECHNOPOL filed a cassation complaint.

The Supreme Administrative Court in its judgment of 8 November 2011 case file II GSK 1033/10 repealed the contested judgment and returned it to the VAC for further reconsideration. The SAC agreed with allegations of violation of administrative proceedings that was based on erroneous findings that the disputed trade mark could not acquire secondary meaning. The Court noted that when the PPO is assessing whether or not a sign has a sufficient distinctive character, any circumstances accompanying its use in marking the goods in trade should be taken into consideration. Grant of a right of protection under previously mentioned rules may not be denied in particular where prior to the date of filing of a trademark application with the PPO, the trademark concerned has acquired, in consequence of its use, a distinctive character in the conditions of the regular trade. This indicates the possibility of acquiring secondary meaning by descriptive signs. In principle, secondary meaning can only be acquired by signs that are devoid of any distinctiveness, including descriptive or generic designations. Thus, the mere fact that the sign is purely informational does not preclude the acquisition of secondary meaning. Descriptive signs refer to the qualities or characteristics that may affect goods from various manufacturers.

Personal interest, case IV CSK 665/10

November 7th, 2011, Tomasz Rychlicki

Writing under a pseudonym, Dariusz B. posted a comment on the website “Gazeta online Elbląg 24”. In his post Dariusz B. wrote to the Mayor of the Elbląg town, that he has photographs of people who sit in the city council, and he described the content of these pictures as a “sex scandal”. He noted that the Mayor’s spokesman ignored this case, so he wanted to know what should he do next with such photographs. Other anonymous Internet users posted comments under the post that has been written by Dariusz B. One of them has disclosed who is the author of the post, and also expressed a negative opinion about the post, by calling it a blackmail. This person also suggested that Dariusz B. has used the media for his own purposes in order to manipulate press journalists. The intentions of Dariusz B. and his honesty, were also undermined. The post of Dariusz B. was described as a blatant violation of the law for which he should bear criminal responsibility. “Gazeta online Elbląg 24” is a service available for free. It is operated by the Municipality of the Elblag town. The comment in which personal data of Dariusz B. was disclosed was written from a computer that had the IP address belonging to the organizational unit of the Elblag town. The unit operates wireless Wi-Fi, whose range includes several publicly accessible areas of the building and parking lot adjacent to it. It was not possible to identify the person who posted this comment. The Police, at the request of Dariusz B. commenced an investigation and failed to establish who was the author of the comment, even when the Municipality of Elblag has disclosed all data, including IP addresses. Dariusz B. sued the Municipality of Elbląg for the infringement of his personal interests. The District Court and the Appellate Court dismissed the suit. Dariusz B. filed a cassation complaint.

The Supreme Court in its judgment of 8 July 2011 case file IV CSK 665/10, published in electronic database LEX, under the no. 898708, held that critical comments of the content of post and the very fact of its posting, or disclosure of the name and surname of Dariusz B., was not a violation of his personal interest. However, it was a violation of personal interests (dignity and reputation) when such action has been called illegal activity, fraudulent and manipulative, a blackmail and provocation, which undoubtedly discredited Dariusz B. in public opinion, especially as a social activist, who was active at another online forum. Such statement, not supported by the facts, was unlawful. In the case of an infringement of one’s personal interests, the court may award pecuniary compensation to a person whose personal interests have been infringed, an approriate amount as pecuniary compensation for the wrong suffered or may, on his demand, adjudge an appropriate amount of money to be paid for a social purpose chosen by him, irrespective of other means necessary to remedy the effects of the infringement. Not only the person who directly caused the damage shall be liable, but also any person who has induced or helped another person to cause the damage, including those who consciously took benefit from a damage caused to another person. However, the Court ruled that there was no normal causal link between the actions of the Municipality of Elblag, and the damage suffered by Dariusz B., and such a link occurs only when the action is directed to accomplish the tortious activity.

By opearating a website “Gazeta online Elbląg 24” and a discussion forum, the Municipality of Elbląg was deemed as the Internet services provider. However, such ISPs, are responsible for the violation of personal rights performed by others only when they knew that the post violates these interests and they did not immediately prevent the access to the post. Therefore, the ISP is not obliged to control the content of posts written by users on a free discussion forum website. Taking into account the nature and purpose of services based on making available free of charge of a discussion website, and considering also that there were no general rules for the management of such services and systems, the Court held that there were no grounds to impose a general obligation on the ISP to provide tools to identify users of such a website. The Court ruled that the anonymity of persons using the publicly available online news website, is a generally accepted principle and essence of this type of service. It provides freedom of expression, which is the goal of such websites. Consequently, the Court held that the ISP that created and provides free access to the website with a discussion forum, has no obligation to ensure the ability to identify the users who maded posts on this website.

Trade mark law, case VI SA/Wa 617/11

October 24th, 2011, Tomasz Rychlicki

On 17 October 2007, the Polish Patent Office registered the word trade mark Auto-dap R-197829 for Dariusz Chudobiński from Łódź. Andrzej Teodorczyk who owns Auto Serwis Dap, that is located in Pabianice town, filed a notice of opposition.

Mr Teodorczyk claimed that Mr Chudobiński acted in bad faith. He also noted that the sign in question was widely known in Pabianice and it was associated with the automotive garage operated by him under the name “AUTO DAP”. The garage was located in the immediate vicinity of the garage owned by Mr Chudobiński. Mr Teodorczy argued that the DAP company was founded by him in 1984, and its designation is an abbreviation of three names. Mr Teodorczyk pointed out that he had shares in the company AUTO-DAP sp. z o.o., that was also founded by Mr Chudobiński and his wife, however, he never transferred the right to the AUTO DAP sign.

The PPO dismissed the opposition and ruled that the Company AUTO-DAP sp. z o.o. has the property right to its company name, and Mr Chdobiński received a proper authorization to file for a trade mark Auto-dap for his own. The PPO ruled that a short abbreviation DAP, as an abstract term, can not be attributed to specific individuals, as their personal interest due to the order of letters in this expression. These letters can have different meanings for the average customer in perception of this determination. The Patent Office did not agree that Auto-dap trade maw was filed in bad faith. Mr Chudobiński submitted evidence documents that he used the name DAP in his business. Mr Teodorczyk, as one of the founders of the AUTO-DAP company, has agreed (and did not oppose) the use of the company’s name (firm) in this way. He used the same DAP designation in his business activities as an individual and in a company which shares has has sold to the owner of the registered trade mark. Mr Chudobiński filed a trade mark application according to the authorization and undertook the obligation to transfer the disputed trade mark on the company, for each request. It was therefore an application that has been made in good faith – the mark was used by the company for nearly 6 years – and the authorization for its registration by Mr Chudobiński did not violate the provisions of the Articles of Association. Mr Teodorczyk filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 16 June 2011 case file VI SA/Wa 617/11 dismissed it. The Court ruled that Mr Teodorczyk did not prove that Mr Chudobiński wanted to block business activities of Mr Teodorczyk for the reason that he has registered the disputed mark. The VAC noted also that Polish law provides that a right of protection will not be granted for a trade mark in respect of identical or similar goods, if the trade mark is identical or similar to a trade mark which, before the date according to which priority to obtain a right of protection is determined, has been well-known and used as a trade mark in respect of the goods of another party. However, this trade mark has to be well-known on the whole territory of the Republic of Poland or on a substantial part of it. The recognition and knowledge of the trade mark only in less than a significant part of the Polish territory, even if it is intense, does not create the right to a well-known trade mark. Knowledge of the trade mark in one city and its surroundings, even if it’s a large one, is not enough for the sign to be regarded as a well-known trade mark.

Personal interest, case II SA/Wa 364/11

October 13th, 2011, Tomasz Rychlicki

On January 2010, a couple of entries signed by the nick “arfulik” appeared on few Polish websites. The author wrote critically about the company Bavaria Consulting and a person who is a member of the board. It seemed that this unknown author conducted a competitive activity. Bavaria and Krystiana D. decided to sue for the infringement of personal interest. They needed personal data of a person who wrote questioned comments. Telekomunikacja Polska (TP), one of the largest ISPs, refused to provide such information, referring to the telecommunications confidentiality included in the Article 159 of the Polish Act of 16 July 2000 on Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments. Allegedly slandered filed a complaint to the Inspector General for Personal Data Protection (GIODO). The GIODO ordered the disclosure the personal data but he overturned this decision after TP filed a request for reconsideration. The GIODO decided that such information is subject to the telecommunications confidentiality and found no reason to disclose it. The offended persons lodged a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 7 October 2011 case file II SA/Wa 364/11 dismissed it, and ruled that the intention of bringing action against the author of a forum post or comment is not a sufficient condition to disclose personal data. One has to file a suit for protection of personal interest. Only then, a court in order to avoid procedural deficiency, will summon the telecommunications operator to disclose personal data of the author of the questioned post.

See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Personal interests, case I CSK 743/10

October 8th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment case file I CSK 743/10 ruled that if the newspaper, which lost a case for protection of personal interests and was ordered to publish an apology in the paper version, has also an online edition, then such a newspaper should also place a reference to apologies for this publication in its online archive.

Personal interest, case I ACa 1273/11

October 3rd, 2011, Tomasz Rychlicki

Mr Andrzej Jezior is a councillor of the Town Council in Ryglice, and he also runs a personal website available at andrzejjezior.blog.onet.pl. He often post comments regarding affairs of local life of the young Ryglice town. Some readers of his website posted negative comments on Bernard Karasiewicz, who was at this time the mayor of this small town. Despite the fact that Mr Jezior removed these comments, Mr Karasiewicz sued for violation of his personal interest. The suit was based on regulations included in the Polish Act on Elections to municipal councils, county councils and regional assemblies, in connection with regulations included in the Polish Act on the direct elections of village-mayor (prefect), town mayor, president of a city.

The District Court in Tarnów in its order of 15 November 2010 case file I Ns 162/10 agreed with the mayor and ordered Mr Jezior to publish an apology on his website, prohibited him from further distribution of these comments and ordered him to pay 5000 PLN for Caritas of the Tarnowska diocese and the case expenses in the amount of 240 PLN. The Court ruled, that Mr Jezior should be held liable for the comments that appeared on his website, because they came from people enjoying freedom of expression. Running a website that allows for posting such comments should be considered a wrongful action that is contrary to public policy and the principles of social coexistence. Mr Jezior appealed.

The Appeallate Court in Krakow in its order of 17 November 2010 case file Acz 1457/10 dismissed the complaint.

Mr Karasiewicz lost local elections in 2010. He sued Mr Jezior for violation of his personal interest again, alleging the comments caused that he was not re-elected to serve as a mayor of Ryglice. This time the suit was based on the regulations included in the Civil Code.

The District Court in Tarnów in its judgment of 3 October 2011 case file I C 319/11 ordered the defendant to publish an apology in the local press for “distributing” content that infringes upon the personal interests of the plaintiff and his family, to pay 1000 PLN compensation and reimbursement of the proceeding costs in the amount of 650 PLN. The Court dismissed the claim where the plaintiff demanded the payment of compensation in the amount of 10.000 PLN. The Court ruled that defendant is responsible and he should bear the consequences that he has made a forum that was available for the publication of any message. Mr Jezior appealed. The Appeallate Court in Kraków in its judgment of 19 January 2012 case file I ACa 1273/11 reversed the judgment of the District Court and dismissed the suit.

Internet domains, case I ACa 1087/10

August 2nd, 2011, Tomasz Rychlicki

The Court of Conciliation for Internet Domains at the Polish Chamber of Information Technology and Telecommunications (the CCID) in its award of 9 March 2010 case file 74/09/PA dismissed the complaint brought by Italian company Bisazza against Polish entrepreneur Rafał Kacprzak Installation.pl from Wrocław who registered the following domain names: bisazza.pl, bisazza.com.pl and bisazza-installation.com. Bisazza claimed that the registration of .pl domains infringed on its CTM BISAZZA no. 001494590 and word-figurative CTM “BISAZZA mosaico” no. 001500248. Surprisingly, the Court did not agree with arguments provided by the Italian company and held that there was no infringement because the regulations included in the Polish Industrial Property law that did not allow for such interpretation. According to the CCID, there was no delict/tort of unfair competition as activities of both companies should be deemed as complementary. The CCID noted that Bisazza could act more carefully and it should have registered both domain names much earlier. According to the Court, by advertising products of the Italian company, Mr. Kacprzak was not acting as a cyber squatter because he did not only intend to increase his financial benefits but he was doing it in order to maximise mutual benefits. The Court also said the Mr. Kacprzak did not infringe on the company name.

CTM no. 001500248

Bisazza S.p.A. filed a complaint against this controversial decision. The Company claimed the arbitration award is contrary to the public policy rules established in the Republic of Poland, including the protection of acquired rights, social justice, stable and secure law, comprehensive examination of the case, consistency of legal decisions and integrity of the legal system.

The Court for the Community Trade Marks and Community Designs (in Polish: Sąd Okręgowy w Warszawie Wydział XXII Sąd Wspólnotowych Znaków Towarowych i Wzorów Przemysłowych) in its judgment of 20 September 2010 case file XXII GWzt 17/10 annulled the questioned award. To begin with, the Court reminded that the Polish legislator sought to strengthen the arbitration proceedings by limiting the possibility of challenge of the awards issued by courts of arbitration. The competence of common courts in controlling the correctness of awards issued by arbitration courts are very limited and strictly defined. The petition for the reversal of the arbitration award belongs to the category of special appeals. It has a cassatory character (annulment of a judicial decision is allowed only in certain cases under strict conditions). In such proceedings the Court will not examine the merits of the dispute (if the facts warrant issued ruling) or verify the correctness of the findings that were made and accepted. All the grounds justifying of the petition for the reversal of the arbitration award are included in the Article 1206 §1-2 of the Civil Proceedings Code – CPC – (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments.

§ 1 By way of an application a party may apply for the award to be set aside if:
1) there was no arbitration agreement, the agreement is not valid, ineffective or has expired under the law applicable to it;
2) the party was not given proper notice of the appointment of an arbitrator, of the arbitration proceedings or was otherwise unable to present its case before the arbitration tribunal;
3) the award deals with a dispute not contemplated by or beyond the scope of the arbitration agreement, provided that, if the decisions on matters submitted arbitration can be separated from those not so submitted or falling beyond the scope of the arbitration agreement, then only that part of the award which relates to the matters not submitted or falling beyond the submission may be set aside; the fact that a matter is beyond the scope of the arbitration agreement cannot constitute a ground for setting aside the award if a party who participated in the proceedings did not object to those claims being heard;
4) the composition of the arbitration tribunal or the fundamental rules of arbitral procedure were not in accordance with the agreement of the parties or with a provision of law;
5) the award was obtained by way of a crime or on the basis of a forged or falsified document,
6) a final judgment has already been made in the same case between the same parties.

§ 2. The arbitration award shall also be set aside if the court finds that:
1) the dispute was not capable of settlement by arbitration under the law;
2) the award is contrary to the public policy rules in the Republic of Poland (public order clause).

The Court noted that when assessing whether an arbitration award is contrary to the fundamental principles of law, the Court should take into account its content and not the correctness of the proceedings that were held before the arbitration body. The basic principles of the law underlying the assessment of the award should be understood not only as the constitutional rules but also as the general norms and rules in particular areas of law. The breach by an arbitration body of the proper substantive law justifies the reversal of the arbitration award only if the award is contrary to legal order. The arbitration body shall decide on the dispute according to the law of the legal relationship and when the parties explicitly mandated it – by the general principles of law or equity/fairness. The Court for the Community Trade Marks and Community Designs concluded that the interpretation of basic principles of trademark law both national and Community, that was provided by the CCID in its award, shows lack of understanding of the merits of law and lack of the ability to apply existing rules to the facts of this case. The arbitration court committed various irregularities: by qualifying the rights to Bisazza trade marks as national property rights, in examining the infringement based on only one character – probably a word trade mark – without considering the reputation, by dismissing the infringement claims on the basis of facts that do not have any meaning in trademark law while failing to examine identity/similarity of the marks and signs included in Internet domains and the goods and services of each party. The court reminded the arbitrator that the rules and regulations under the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, the CTMR and the case law of the Court of Justice of the UE apply directly in disputes over infringement of the Community trade mark. These rules and regulations must be applied also by national courts including arbitration bodies. Incorrect choice of legal norms and wrongful interpretation led to an unjustified deprivation of protection which is afforded to Bisazza in relation to its trademarks. Mr Kacprzak appealed.

The Appellate Court in Warsaw in its judgement of 1 April 2011 case file I ACa 1087/10 overturned the judgment of the Court for the Community Trade Marks and Community Designs. The Appellate Court found that since the CCID ruled that it has no jurisdiction to hear and decide upon some of the demands made by Bisazza, and rejected them in the suit, the decision was final and could not be controlled at all by the civil courts, including the proceedings caused by an action for annulment of an arbitration award. The findings stating that the CCID had no jurisdiction, that were based on the domain names regulations issued by the Scientific and Academic Computer Network (Naukowa i Akademicka Sieć Komputerowa), did not constitute a breach of the basic principles of the law (the public order clause), because Bisazza could take these demands to a civil court. In the opinion of the Appellate Court, the District Court failed to consider whether the erroneous application of the Polish law rather than the EU by the CCID was tantamount to violation of the basic principles of the law. It could have been so, only if it had a significant impact on the content of the decision rendered by the CCID. In the opinion of the Appellate Court, however, there was no such effect in this case. The Appellate Court ruled that the relevant regulations provided in the Polish law are the result of the implementation of the Directive 89/104/EEC and its relevant provisions required for this case to be then included in the CTMR. The Court decided that the solutions provided in the Polish law are similar to those of EU legislation, and the classification of infringement of trade mark rights is done by the same rules. The Appellate Court noted that the CCID found that Mr Kacprzak used, in the course of trade, a trademark identical to a protected mark not in relation to identical or similar goods but to goods protected by this trademark. The defendant is an installer of Bisazza mosaics but not identical or similar mosaics. The CCID examined also whether or not there is an infringement of reputed trademark, however, found no such breach. The Appellate Court also ruled that the award of the CCID did not violate the rules and principles of a stable and secure law because these rules should relate to the creation of law and not its application.

See also “Polish case law on domain names“.

Personal interests, case III CSK 73/07

July 24th, 2011, Tomasz Rychlicki

Professor Andrzej Gregosiewicz posted very negative press articles and comments regarding homeopathic medicines, in particulr Oscillococcinum preparation that is produced by the French company Boiron. He also criticized regulations included in the Polish Pharmaceutical law. His publications were also available on different websites. These articles and comments included, among others, statements that homeopathic medicines may carry bird flu virus HN51, Professor Gregosiewicz argued that taking some homeopathic medicines is similar to suicide. He has named Oscillococcinum as the most widely used homeopathic product with the bird flu virus, and claimed that its producer was involved in bribery during the legislative process, in order to gain favourable regulations. Boiron Societé Anonyme sued for the infringement of personal interest. The case went through all instances.

The Supreme Court in its judgment of 10 May 2007 case file III CSK 73/07 held that the belief that someone is using the constitutionally guaranteed freedom of expression and he acts in the interest of public health is not a sufficient basis to consider certain actions as repealing the illegality of expression.

Personal interest, case I OSK 1217/10

July 4th, 2011, Tomasz Rychlicki

The Inspector General for Personal Data Protection (GIODO) ordered Axel Springer Polska to disclose addresses of three authors who wrote a critical article in “Dziennik” newspaper about Polish businessman, however, information presented in the article proved to be incorrect. He wanted to sue all authors but Axel Springer refused to provide addresses, therefore, the lack of addresses of the defendants in the lawsuit was the reason for the civil court to dismiss the action.

Axel Springer Polska filed a complaint against the decision of the GIODO but the Voivodeship Administrtive Court in its judgment of 8 April 2010 case file II SA/Wa 1488/09 dismissed it. Axel Springer filed a cassation complaint.

The Supreme Administrative Court in its judgment of 18 June 2011 case file I OSK 1217/10 ruled that if the addresses of journalists are required to bring an action for the protection of personal interest, the publisher must disclose them to the requesting party.

Personal interest, case I ACz 462/11

June 20th, 2011, Tomasz Rychlicki

A Polish Internet user has started a Facebook account in which he accused a travel agency Alfa Star from Radom of dishonesty and presented bad reviews of its services. Other Facebook users also started to post negative comments. The travel agency filed a suit for protection of personal interest together with the injunction to delete the Facebook account along with all the comments until the final decision in the case is rendered. The District Court in Radom granted the injunctive relief. Bartosz C. filed a complaint against this decision. The Appellate Court in Lublin in its order of 30 May 2011 case file I ACz 462/11 reversed the injunction. The Court noted that although the company has shown its interest in granting the injunction, it also seek this way to satisfy all claims included in the suit. If, before the end of the proceeding, the company would obtain the injunction to remove an account, this would actually satisfy its claims. The Court noted that the injunction should be granted to the extent that the plaintiff is afforded the adequate legal protection, and the defendant it not burden more than it’s needed. Facebook allows for the deactivation of an account and such injunction should be considered by the District Court as adequate injunction.

Personal data protection, I OSK 1086/10

June 3rd, 2011, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 19 May 2011 case file I OSK 1086/10 acknowledged the principle that in case of a disclosure of personal data in the media, the press law and civil law regulations are applicable, and not the provisions of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments.

See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Personal interest, case I C 1050/09

June 3rd, 2011, Tomasz Rychlicki

Paweł Wodniak, journalist of the website “Fakty Oświęcim” was sued by Artur Kierczyński for violation of his personal interest. Mr Wodniak prepared a short video report in which presented testimonials of Broszkowice citizens, who participated in blocking the road 933 in a protest against a nearby gravel-pit from being functional. The report also contained footage of Marian Gołąb, who was the Mayor of Broszkowice, stating that there is already a criminal investigation underway on the ex-owner of the gravel-pit. Mr Gołąb released full name of Artur Kierczyński. Mr Kierczyński sued for violation of personal interest for releasing his full surname while there was an ongoing criminal trial against him. In his opinion, Mr Wodniak’s behavior breached the rule of alleged innocence and it was a breach of Article 13(2) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.

One cannot publish in the media personal information and images of individuals, against whom there is an ongoing preparatory proceedings or court proceeding as well as personal information and images of witnesses, wounded and hurt, unless these persons agree to it.

The District Court in Kraków in its judgment case file I C 1050/09 dismissed the lawsuit. The Court ruled that a news report that merely mentions an individual’s involvement in a criminal proceeding does not constitute a violation of the above mentioned regulations on Press Law, the rule of innocence, or journalism ethics.

Personal data protection, case II SA/Wa 2037/10

May 12th, 2011, Tomasz Rychlicki

The Polish branch of McDonald’s Corp. has made a promotional campaign based on the issuance of the so-called “bonificards” i.e. discount cards entitling the holder to purchase certain McDonald’s products at a reduced price. Only employees and business partners were allowed to use such cards. The terms of the promotion explicitly stated that the cards cannot be resold. McDonald’s learned that cards were offered for sale or as a free bonus to other items sold on Allegro – Polish Internet auctions website.

McDonald’s requested Allegro to disclose personal data of persons engaged in the above mentioned auctions, on the grounds that these buyers and sellers violated the terms and rules of promotion, and thus McDonald’s intended to take steps to – on one hand – to deprive sellers of their wrongfully obtained benefits, on the other hand – to take away all bonificards from people who bought them. Allegro refused to provide requested data, indicating that there was no reason to assume that there was any kind of illegal action, arguing that disclosure may be classified as unlawful conduct of the controller that violates personal interests of the users and that may result in Allegro’s responsibility that is based on civil law regulations.

McDonald’s requested the Inspector General for Personal Data Protection to order Allegro the disclosure of information previously requested. The GIODO refused and pointed out that in this case the interests of McDonald’s cannot prevail over the interests of persons affected by the request. The disclosure of such data would be, in fact, too far-reaching interference with the privacy of the person concerned. McDonald’s filed a complaint against these decisions.

The Voivodeship Administrative Court in Warsaw in its judgment of 16 March 2011 case file II SA/Wa 2037/10 overruled GIODO’s decisions. The VAC held that McDonald’s has the right to know who offers promotion cards at online auctions provided by Allegro. The Court ruled that the provisions of the PPD cannot be interpreted as meaning that the disclosure of personal data of a person who offer to sell someone else’s property, violates that person’s interests. The protection of interests of one person cannot be done without prejudice to the rights of others. Especially, when such persons knew that they were trying to dispose of someone’s else things whose value was measured in money (the value of the Company’s products that were available in the promotional terms). The court ordered to reconsider the case, where the GIODO shall take into account all comments made ​​by the VAC. The GIODO decided to file a cassation complaint.

The Supreme Administrative Court in its judgments case files I OSK 834/11 and I OSK 1137/11 agreed with the GIODO. The Court held that in the case of electronic services, personal data may be disclosed only for the purposes of criminal proceedings.

See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Personal interest, case III CSK 120/09

April 8th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment of 5 February 2010 case file III CSK 120/09, published in LEX no 585820 ruled that the registration of a newspaper or a journal does not prejudge the right to the press title and does not rule on conflict or lack of rights of the other party to the registered press title.

Trade mark law, case II GSK 91/10

April 5th, 2011, Tomasz Rychlicki

The Polish company Biuro Miss Polonia Sp. z o.o. filed a request for invalidation of the right of protection for the word-figurative trade mark “MISS POLONIA WORLD” R-152218 owned by MISS POLONIA A. Aldona Von Laübe from New Britain, USA. Biuro Miss Polonia argued that the registration infringes on its personal interests (company name) and the Polish company operates on the marker since a long time as the organizer of the annual, national beauty pageant. The Polish Patent Office invalidated the right in question. Aldona Von Laübe filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in Warsaw in its judgment of 17 July 2009 case file VI SA/Wa 337/09. The American company filed a cassation complaint.

R-152218

The Supreme Administrative Court in its judgment of 8 February 2011 case file II GSK 91/10 dismissed it. The SAC ruled that there were no rational arguments that in case of existence of a trade mark similar to the company name, the infringement of personal interests and the rights to company name could take place only in cases when the entire trade mark consist of the company name. The promotion and marketing of goods bearing trade marks that are confusingly similar to the company name is also deemed as the threat to personal interests or property rights. The fact that the questioned trade mark in addition to the words “Miss” and “Polonia” (that were concurrent with the partial company name of the applicant) contained the word “World” did not deprive the applicant of the protection of the company name as a personal interests, because the designation “Miss Polonia” had sufficient distinctive characteristics that would allow for the identification of an applicant and help to distinguish it from other entities.

Personal interest, case I ACa 544/10

March 22nd, 2011, Tomasz Rychlicki

A critical article was published in a paper magazine entitled “Forum Akademickie”. It concerned one of the scientist from the University of Opole. Some offensive comments appeared also at magazine’s online forum. These entries were removed after the administrator received a notice from the researcher. There was another offensive entry published on 30 November 2008, but on the same day it has been removed by a site administrator. The researcher sued the editor for allowing for the publication of inaccurate and defamatory comments which in consequence infringed on his personal interests. The District Court in Lublin dismissed the claim as unjustified. The Court held that according to regulations included in Article 14 and 15 of the PSEM the defendants cannot be held responsible because they prevented the access to questioned data/entries. The plaintiff appealed.

The Appellate Court in Lublin in its judgment case file I ACa 544/10 held that defendants should be held liable because they provided a website that was used for discussion and exchange of different views and they posted also a warning message about the moderation or deletion of entries that will not fit for certain rules, although according to the Court they were not obliged to do so, but they also employed for this purpose a person whose duty included monitoring the entries and the removal of those that were posed not in accordance with law and social norms. Therefore, The Court ruled that defendants had knowledge of illegal entries. As a result, they were responsible for failing to remove them without delay and to do so only after many months, at the request of the plaintiff.

The Court ordered the defendants (the editor of the magazine and its publisher) to publish under the article the statement of apology and to pay jointly 5.000 PLN to charity. The judgement is not final.

Trade mark law, case VI SA/Wa 650/10

March 1st, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 20 Demceber 2010 case file VI SA/Wa 650/10 acknowledged the rule that the infringement of the company name as a condition to invalidate the registration of a trade mark under the old Polish Trade Mark law is not forejudged by registration of an identical or similar mark by another company. The VAC repeated that the exclusive rights to the company name are not an absolute. The limits have the territorial and objective nature and they concern the actual actvity of an entity that is using the name in question. Only within these limits the collision between identical or similar company name and trademark may occur. So if the scope of business activities of an entitled to the company name and the holder of the registration of the trade mark differs, there is no risk of consumers confusion as to the identity of companies or for example, a proprietor of the later trade mark is not using the reputation associated with an earlier identical or similar company name, it’s hard to say that there is the collision of these two rights, and consequently an infringement of an earlier right to the company name. This judgment is not final yet.

Personal interest, case II CSK 431/10

February 21st, 2011, Tomasz Rychlicki

Polish pop-singer Dorota Rabczewska sued Polish rapper Mieszko Sibilski for the infringement of her personal interests. She demanded an apology and 20.000 PLN as compensation for the damage she suffered. Rabaczewska lost the case in the first instance. The Court of second instance ordered Sibilski to publish an apology for the infringement of her dignity in the form of an online ad that has to be placed for 7 days at Polish portal site Onet.pl. The calculations showed that such action would cost around 32.000.000 PLN. Sibilski lodged an cassation complaint.

The Supreme Court in its order of 2 February 2011 case file II CSK 431/10 held that the court cannot order an apology for the violation of dignity, if the plaintiff requested for the protection of other personal interests, in this case her reputation and right to privacy. Moreover, the Supreme Court ruled that the second instance court improperly ordered the form of publication of an apology because it did not take into account technical requirements and the costs associated with it. The Supreme Court reversed the judgment and sent the case back for reconsideration.

Personal interests, case I C 588/10

February 11th, 2011, Tomasz Rychlicki

Polish businessman, sued the owner of a Polish internet website Money.pl seeking the removal of two press releases that came from the Polish Press Agency and were republished at money.pl. In his view, the publication of these texts was made in breach of his personal interests, because they informed about earlier, unsubstantiated accusations directed at him by the Polish newspaper “Gazeta Polska” and Tomasz Sakiewicz, the editor-in-chief of “Gazeta Polska” and a well known right-wing journalist. These proved to be false accusations. The publisher and Sakiewicz pledged to publish apology.

The District Court in Kraków in its judgment of 10 January 2011 case file I C 588/10 dismissed the suit. The Court ruled that media are allowed to publish diffrent comments and informationn, even if some people mentioned there, are against such publications.

The Appellate Court in Kraków in its judgment of 19 May 2011 case file I ACa 372/11 overturned the judgment of the District Court.

Personal data protection, case II SA/Wa 1212/10

February 4th, 2011, Tomasz Rychlicki

The case of Tomasz W. and his image treated as personal data still continues. See “Personal data protection, case I OSK 667/09“. GIODO annulled its earlier decision, however it also refused to take account Tomasz W. requests in its new decision. GIODO ruled that personal data (photos and captions) of Tomasz W. are not presented on the website, and are not publicly available because they were removed from the specified address. GIODO also noted that Nasza-Klasa is still processing the personal data treating it as evidence, because it keeps them on its servers and in the system’s memory. GIODO finally held that the Company, as controller, is processing these data under provisions of Article 23(1)(v) of the PPD, under which such the processing of data is permitted because it is necessary for the purpose of the legitimate interests pursued by the controller and that the processing does not violate the rights and freedoms of the data subject. Among the reasons justifying the data processing, GIODO mentioned the possibility of establishing the responsibility of the recipient for violations of the Terms of Service that were set by the Company. This judgment is not final yet. GIODO filed a cassation complaint.

The Voivodeship Administrative Court in Warsaw in its judgment of 1 December 2010 case file II SA/Wa 1212/10 ruled that, these circumstances do not fulfill the conditions for legitimate interests of data processing. It should be noted that the condition relates to the existing and unquestionable situation, so if there is a need to demonstrate a need to claim in business, not a situation where the data are processed for eventual trial and the possible need to prove that personal data obtained without the consent of the person concerned shall be processed in accordance with the law. The Court also noted that Tomasz W. only announced but he did not initiate any courts proceedings against Nasza-Klasa. Therefore, according to the Court, Nasza-Klasa was not allowed to process personal data only to protect itself against any future and uncertain claims mentioned by Tomasz W. Otherwise, there are doubts how long to process personal data if Tomasz W. fails to comply with his announcement.

See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Trade mark law, case VI SA/Wa 1345/10

January 7th, 2011, Tomasz Rychlicki

Polska Agencja Fotograficzna Studio 69 filed a notice of opposition to a final decision of the Patent Office on the grant of a right of protection for STUDIO 69 R-182300 trade mark owned by Marcin Maculewicz from Kielce. PAF claimed that the phrase STUDIO 69 was widely known and used by PAF as its trade mark. PAF also argued that according to 15 years of its business practice one can successfully operate on the media market without reserving or registering a brand name, and STUDIO 69 is a common sign that is also used widely by many companies. At the same time PAF did not claim infringement of the company name and explained that different entrepreneurs use such a sign.

The Polish Patent Office ruled that it is the duty of the opposing party to prove that a given sign is well known and is associated with products coming from the opponent. This should be demonstrated at the filing date of an application for the registration of a trade mark. The PPO explained that the well known sign is characterized by two elements. The first one is related to the function of marking the origin of goods/services (the distinctive function). A sign must have this feature in order to be registered as a trade mark. The second element is the requirement that a trade mark has became commonly known as a result of the use. According to the Polish case law and legal doctrine, a well known sign should be recognized in most of the territory, by more than half of potential purchasers of the goods. The basic criteria for assessing the objective possibility to become a well known trade mark include: the period of time of trade mark use, the situation of goods on the market (quantity, availability, method and scope of distribution), advertising campaigns and the strength/distinctive character of a trade mark. The PPO examined the evidence presented and reminded that common knowledge is assessed in terms of knowledge among potential customers. The PPO ruled that PAF has not demonstrated that more than 50% of potential customers on the Polish territory is familiar with STUDIO 69 trade mark and decided to dismiss the opposition. PAF filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 14 October 2010 case file VI SA/Wa 1345/10 dismissed the case. The Court ruled that the Administrative Court, as a rule, does not carry out hearing of evidence, because the examination of legality of an administrative decision is based on the evidence gathered in the proceeding before an administrative authority (in this case the PPO) issuing the contested decision. According to Polish legal commentators, in principle, there are three sources of trademark protection within the industrial property law: the grant of a right of protection for a trademark (in the form of an administrative decision issued by the PPO), the use of a trade mark and common knowledge of a sign. The Court cited W. Włodarczyk, The distinctive ability of a trade mark, Lublin 2001, p. 28. The VAC held that PAF did not prove that STUDIO 69 was a well known sign. The judgment is not final yet.

Trade mark law, case VI SA/Wa 601/10

December 21st, 2010, Tomasz Rychlicki

The Polish company Producent Okien i Drzwi z PVC “OKLAND” Joanna Wilk i Wojciech Wilk Spółka Jawna from Kostomłoty Pierwsze filed a request for invalidation of the right of protection for a word-figurative trade mark Okland R-154904 owned by OKLAND Spółka z o.o. from Rokitki, in regard to the goods in Class 19, wooden windows. The company from Kostomłoty Pierwsze claimed it operates since 1 June 1997. Its business activities include the production of windows and doors of PVC in the four southern voivodeships. The company argued that the simultaneous use of the OKLAND sign in its company name and as a trade mark registered for a different entrepreneur may increase the risk of misleading the public, which includes in particular the risk of association between signs. The Polish Patent Office invalidated the right of protection. Okland from Rokitki filed a complaint against this decision.

R-154904

The Voivodeship Administrative Court in Warsaw in its judgment of 31 May 2010 case file VI SA/Wa 601/10 held that the registration of a trade mark that is identical or similar to a company name of another entrepreneur does not determine, however the infringement of the rights to the company name (the firm). The exclusive rights to the company name are not absolute. The limits of these rights are set by the coverage (territorial and objective) of the actual activity of a given company. The collision between identical or similar signs i.e. a company name and a trademark, may occur only within these limits. The judgment is not yet final.

Trade mark law, case VI SA/Wa 1425/10

December 15th, 2010, Tomasz Rychlicki

On 17 July 2008 Eltel Networks S.A. requested the Polish Patent Office to make a decision on the lapse of the right of protection for ELTEL R-75862 trade mark that was registered for ELTEL Przedsiębiorstwo Usługowo-Handlowe Brodnicki Bolesław from Poznań. The PPO concluded that the evidence submitted (invoices), despite using slightly different terms refer to services that correspond to services protected by the registered trademark. Eltel Networks filed a complaint against this decision.

R-75862

The Voivodeship Administrative Court in its judgment of 15 October 2010 case file VI SA/Wa 1425/10 held that documents, in particular orders, invoices, delivery or sale receipts, as well as labels, packagings and related evidence that is demonstrating the real occurrence of goods or services in trade, should be deemed as the essential evidence. But the crucial evidence are the invoices, because labels, tags, hangers, bags and seals for clothing, and pictures of stores do not show and prove the actual sale of goods marked with the sign, nor did they show the measurements and scale. Without invoices, the advertising materials, such as calendars, cards, pictures with the logo, can play only a supporting role. The Court agreed with the PPO and dismissed the complaint. The judgment is not final yet.

Press law, case I CSK 664/09

November 25th, 2010, Tomasz Rychlicki

In 2001, the Polish magazine “Polityka” published the article entitled “Po pierwsze Sandauer”. The author quoted a surgeon, who operated Adam Sandauer, the president of Primum Non Nocere association, in which he had said that instead of more surgery Mr Sandaur needed a psychiatrist. The author quoted other doctors, who spoke about Sandauer being in conflict with the medical community and suggested that he is in bad mental condition. He quoted passages of Sandauer’s private mail to confirm this statement. Mr Sandauer sued and the case went through all instances. The Supreme Court in its judgment of 17 listopada 2010 case file I CSK 664/09 held that publication of private correspondence without the permission of the author, and especially when it concerns the sphere of his or her private life, such as health, is unlawful.

Trade mark law, case VI SA/Wa 11/10

November 23rd, 2010, Tomasz Rychlicki

On 22 October 1999 Jarosław Synowiec Agencja Kurier-Media from Iława applied for the word-figurative trade mark “KURIER Iławski TYGODNIK POWIATU IŁAWSKIEGO” Z-208891 for goods and services in class 16 and 42 such as publishing and printing a newspaper. The Polish Patent Office refused to grant the right of protection. The PPO found that the applied trade mark is also the title of the magazine with the same graphics and colors, which is published by Wydawnictwo Pomorskie in which Jarosław Synowiec previously worked as editor in chief. Due to long-term presence on the Polish market, this sign became widely known in public. Jarosław Synowiec filed a complaint against this decision.

Z-208891

The Voivodeship Administrative Court in Warsaw in its judgment of 6 July 2010 case file VI SA/Wa 11/10 dissmissed the complaint. According to the Court, the PPO reasonably assumed that the registration of the questioned trade mark was inadmissible because of the conflict with the law and rules of social coexistence. The registration of signs, whose use as a trade mark could be an act of infringement of property rights of third parties, such as the right to the company, the right to press title, copyright, etc. is not allowed. The VAC held also that whenever the collision of the rules specific to the system of formal protection (the principle of registration of signs) with the principle of protection of designations used effectively and genuinely in business occurs, the priority is given to the latter.

Trade mark law, case VI SA/Wa 299/10

November 15th, 2010, Tomasz Rychlicki

On 14 March 2007, the Polish Patent Office registered the word-figurative trade mark Oxford Wielka Historia Świata R-187352 for goods in Class 16 such as books and periodicals. The Polish company “Oxford Educational” sp. z o.o. from Słupsk was the applicant and the holder of the right of protection. The Chancellor Masters and Scholars of the University of Oxford (Oxford University Press) filed a request for invalidation. The OUP argued that it is obvious to everyone that Oxford is a place uniquely associated by the public around the world with the home of a famous university. Therefore, marking the goods with a signs associated with Oxford – the seat of the famous University of Oxford – may mislead the public as to the true geographical origin of products. The OUP also pointed out that, with priority from 24 April 1995, is entitled to the rights of protection to three trade marks sharing the same verbal element, OXFORD, R-103399, OXFORD UNIVERSITY PRESS R-102351 and OXFORD ENGLISH R-102350.

R-187352

The Polish company argued that the trade mark at issue does not refer to a geographical name of Oxford town, but to holder’s company name, and therefore it is not misleading. Oxford Educational also argued that the disputed sign was created in collaboration with an English company. The Polish Patent Office invalidated the right of protection. The PPO ruled that the conflicting trade marks are registered for identical goods, therefore, there is a risk of misleading the public as to their origin. Oxford Educational filed a complaint against this decision.

R-102350

The Voivodeship Administrative Court in Warsaw in its judgment of 13 May 2010 case file VI SA/Wa 299/10 dismissed the complaint. The Court held that in case of a collision between a company name (the firm) and a trade mark that was registered with the “worse priority,” the priority shall be given to the right that was previously-formed. The mere registration of a trademark that is identical or similar to another company’s name (firm) does not provide even a breach of the rights to the company. However, the right to the company name would be infringed if the registration of a conflicting trade mark interferes with the exercise of this right. This distortion is misleading as to the identity of actors (acting under the company name and usign the sign) and therefore may jeopardize the company name. In case of a known, reputable, i.e. “strong” trade mark it means that the consumer awareness is associated with the recognized high-quality of products, derived from the manufacturer with high reputation. Thus, the registration of the questioned trade, and more – its application was made with a clear intention to benefit from the reputation of the OXFORD trade mark.

Trade mark law, case VI SA/Wa 807/10

November 8th, 2010, Tomasz Rychlicki

On 27 January 2007, the Polish Patent Office granted the right of protection for GUCIO trade mark R-187648 for goods in Class 25 such as children’s shoes.

Guccio Gucci S.p.A. the owner of two word-figurative trade marks GUCCI R-181633 and GUCCI R-184796 gave a notice of opposition to a final decision of the PPO on the grant of a right of protection to GUCIO trade mark. While proving the reputation of GUCCI trade marks, the Italian company stressed the fact that it owns many stores, where high-quality clothing and footwear is sold and it also includes shoes for children. The customers of these stores are known and influential people. The company argued that since the mid-twentieth century, the Gucci brand and products bearing this trade mark are associated with the highest quality and luxury – Gucci has become sort of “certificate of quality.” The Company pointed out that Gucci fashion house brings together leading, world fashion designers thus have a substantial impact on global fashion trends. Consequently, the goods that are marked with this symbol appear in numerous television programs, shows and magazines on fashion. GUCCI argued that similar trade marks in conjunction with the homogenity of goods for which these signs are clearly intended, may to lead to the risk of their association, and even confusion by customers, and this causes the possibility of customer confusion as to the origin of goods.

R-181633

Sławomir Piwowarczyk, the holder of GUCIO trade mark argued that the word GUCIO is a diminution of GUSTAW. The PPO dismissed the opposition. Guccio Gucci S.p.A. filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 30 August 2010 case file VI SA/Wa 807/10 dismissed the complaint and held that dissimilar signs cannot lead to customers’ associations, so there can be no issue of imitation, and conscious deriving of benefits from someone else’s reputation. If the similarity between the signs does not occur there is no need to examine whether there was the use of another person’s reputation. The examination whether there are similarities between the trade marks is the “precondition” of establishing the argument/view that the use of reputation has been made. The second condition is to establish/examine that the trade mark has a reputation. The judgment is not final yet.

Trade mark law, case no. Sp. 541/07

November 3rd, 2010, Tomasz Rychlicki

On 30 October 2002, Centrum Szybkiej Diagnostyki Kardiologicznej “KARDIOMED” Maciej Żabówka, Maciej Bylica from Tarnów applied for the word-figurative trade mark KARDIOMED for goods in Class 36 and in Class 44 such as rental of medical equipment, devices and medical apparatus. On 1 August 2004, the Polish Patent Office granted the right of protection R-180711.

R-180711

Another Polish entrepreneur, Centrum Kardiologiczne KARDIOMED Lucja Kieras-Deżakowska from Sosnowiec, filed a notice of opposition against the decision of the PPO on the grant of a a right of protection. The opposing party raised a number of arguments: the infringement of the rights to the company name, the misleading nature of the questioned sign, that the application for a trade mark was made in bad faith, confusing similarity. Lucja Kieras-Deżakowska argued that on 8 August 2001 she applied for the wor-figurative trade Mark Kardiomed for goods in Class 44 such as medical services for people in medical consulting rooms, counseling and medical care, m dical diagnostics, echocardiography, ultrasound, electrocardiography, stress tests, heart rate and pressure records, medical examination, physiotherapy, psychotherapy, paramedical services. The decision on the grant of the right of protection R-162886 was given on 6 May 2005. Ms Kieras-Deżakowska claimed the similarity of signs and services.

R-162886

The Adjudicative Board of the Polish Patent Office in its decision of 13 September 2010 case no. Sp. 541/07 dismissed the opposition. The PPO ruled that the services are different. And although the signs do have similarities, it eliminates the risk of confusion. The PPO also noted that the civil court, should assess whether the proprietor has committed an act of unfair competition. As for other grounds of the Board found no evidence to support them. The decision may be appealed against to the Voivodeship Administrative Court in Warsaw.