Archive for: Polish Appeallate Court

Procedural law, case V Aca 139/09

August 2nd, 2010, Tomasz Rychlicki

Reynaers Polska Sp. z o.o. sued Aluprof S.A for the infringement of its utility design UZY-62187. The Appellate Court in Katowice in its judgment of of 25 June 2009 case file V Aca 139/09 ruled that making the sentence publicly known is targeted to reconcile the offender, as it undermines consumer confidence in its product. The purpose of this kind of publication is not moral satisfaction of the plaintiff, especially if it’s a legal person being incapable of mental states. It is a legal remedy directed on the awareness of customers and their choice, that is reflected in the relations of property rights. The Court decides on publishing the judgement in full or in part, or the mention of the judgement, in a manner and at the extent as specified by the court. However, the plaintiff should also indicate the form and extent of publication in its lawsuit.

Civil law, case I ACa 295/10

July 27th, 2010, Tomasz Rychlicki

Allego.pl is a very popular Polish auction website. Michał Z. is one of many of its users. He was acting on behalf of his father’s company when he placed an auction. When setting the option “buy now”, he allegedly by mistake underpriced the item he was trying to sell. The item was valued for 74.000 PLN but Michał Z. set the “buy now” price for 7.400 PLN. Alicja W. decided to buy this item and she choose “buy now” option. She received an e-mail confirming her purchase from Allegro.pl

Michał Z. tried to void the contract, arguing that he has made a mistake when setting a price for this auction. When Alicja Z. came for the auctioned item, its owners have refused to release it. They proposed purchase of another one – in a promotional price of 50.000 PLN. Alicja Z. did not agree to a subsequent proposals, including 20.000 PLN compensation and she sued.

The District Court in Radom dismissed her claim. The Court ruled that the parties came to the conclusion of the contract of sale, but Michał Z. has successfully evaded of legal consequences of his offer, because it was made by error of fact. It was clear for the Court that the value of the item was given incorrectly, and it did not correspond to real costs of such products. The Court ruled that Alicja W. was certainly aware of this price disparity. She could have acquired such knowledge even from the website of the seller because the address was included in the offer. Alicja Z. appealed.

The Appellate Court in Lublin in its judgment case file I ACa 295/10 held that if the declaration of will has been made to another person, the evasion of legal consequences it permissible only if the error was caused by that person, even if such person was not guilty, or if such person was aware of the error (for example such knowledge was acquired during the negotiations) or the error could easily be noted by such person. According to the Court, none of these conditions has occurred in this case. The Court ruled that it cannot be assumed that someone must be aware of the fact that the price is wrong, and that it was possible for such person to find out the actual price.

The Appellate Court ruled that the District Court overlooked the fact that the auction was placed on Allegro website, which has its own rules (TOS) of trading/auctioning. The item was only available at the auction with the “buy now” option, in which the seller puts the goods at a fixed, predetermined price. The contract between the seller and the buyer takes upon confirmation of the “buy now” option, as the buyer is automatically notified. The terms of such auction cannot be changed in relation to the buyer who has made an offer, before such change was made. The seller, who choose this type of auction, is bound by the rules and cannot change the conditions of the transaction after a bid by the buyer. The Appellate Court sent this case back for reconsideration.

Personal interest, case VI ACa 1402/09

July 16th, 2010, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 15 July 2010 case file VI ACa 1402/09 held that even if a website only republishes articles or summaries of works published in major periodicals, it is not absolved from responsibility for infrigement of personal interests of a person who was described in such an article.

Personal interest, case VI Aca 1460/09

July 12th, 2010, Tomasz Rychlicki

Małgorzata F. sued a residential community and the advertising company for infringement of her personal interest that according to Małgorzata F. occured by placing on the building in which she lives a big banner advertising, which concealed all windows of her apartment. The plaintiff did not ask for financial compensation but only for the apology to be published in the media.

The Appellate Court in Warsaw in its judgment of 9 July 2010 case file VI Aca 1460/09 held that such advertising does not constitute an infringement of personal rights, in particular immunity of residence, because it rather concerned the so-called domestic peace (mir domowy). The court suggested that the right way for such disputes is to challenge the resolutions of the community or to base a lawsuit on the rules on the protection of property, and not the path of protection of personal interests.

See also “Advertising law, reclaim the windows“.

Copyright law, case I ACa 206/10

June 26th, 2010, Tomasz Rychlicki

Passa Company sued its competitor – Informator Handlowy Publishing House for the copyright infringement of personal and economic rights to a few ads that were published by Passa. Passa argued that Informator Handlowy copied, altered and distributed these advertising in its magazine, including photographs that were used by Passa.

Informator Handlowy argued that it has received all the published materials from its advertisers and they should be the defendants in this case. IH also argued that the advertisements at issue are not protected by copyright law, since they do not have the characteristics of the copyrightable work. They rely solely on the computer alteration, without the creative factor, and photographs (walls, roofs and chimneys) do not have the nature of the copyrightable work because they do not contain any creative element.

The District Court in Lublin ruled that photographs that were used in ads cannot be protected by provisions of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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. However, the Court also held that these advertisements are subject to copyright protections as provided in article 1 of the ARNR because they meet the criterion of individuality (creativity of the plaintiff) and originality (they presented a visible margin of creative freedom, own personal choice of treatment of the subject). The Court held that the publication of advertisements without consent of Passa infringed its copyright. The Court also ruled that there were no conditions for the adoption of the liability of the defendant under the provisions of article 17 and 79 of the ARNR.

The Appellate Court in Lublin in its judgment case file I ACa 206/10 confirmed the findings of the court of first instance as to the copyright infringement of advertisings, but also pointed out that the District Court misinterpreted the law. The Court held that in a situation where the use of the work is illegal (there is no agreement to use copyrighted work or the provisions of fair use/allowed use cannot be applied), i.e. such use is made without the consent of the creator, his claims are set out in article 79 of the ARNR, including the right to equitable remuneration. A defendant in such case can be anyone who infringes on creator’s right. The Court emphasized that copyright protection vest in the owner against anyone who violates those rights. It did not matter that the advertisements were published on behalf of Informator Handlowy’s clients and that the infringer was in good faith or it has exercised due care. See also “Copyright law, case I ACa 2/96“. The Appellate Court found that the Court of First instance was wrong to rely on Article 42(2) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.

The publisher and the editor is not responsible for the content of announcements and advertisings published in accordance with article 36.

That provision concerns the responsibility for the content and form of advertising, or infringement of the rights associated with breaking the rules of social coexistence, or any legal prohibition of advertising, such as alcohol, cigarettes, or the Act on Combating Unfair Competition. This provision does not cover the issue of infringement of copyright. See also “Press law, case V CK 675/03“. The Appellate Court referred the case back for retrial because of the scope of procedural and material errors, including rejection of a motion for admission of an expert as to the estimate of the amount of compensation, the lack of assessment of all material.

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

Internet domains, case I ACa 1334/07

June 17th, 2010, Tomasz Rychlicki

The District Court in Warsaw in its judgment of 29 August 2007, case file XVI GC 756/06 dismissed the complaint filed by “Euro–net” sp. z o.o. against the judgment of the Court of Conciliation for Internet Domains at the Polish Chamber of Information Technology and Telecommunications of 23 March 2006 case file 22/05/PA in which the Court of Conciliation dismissed the “Euro-net” complaint against Rafał Falęcki in case of infringement of trade mark rights and unfair competition delict/tort concerning eurortv.com.pl domain name.

The Appellate Court in Warsaw in its judgment of 16 April 2008 case file I ACa 1334/07 dismissed the appeal, although it also found that some of the allegations included in the complaint proved to be accurate. The Court of Conciliation violated the adversarial rule because it has conducted an investigation of evidence ex officio, by looking on web pages and performing a search for disputed words “euro” and “rtv” in Google. The Court has not made any survey protocol or notes. This was made personally by the arbitrator without a request of both parties, however, the parties have not raised any comment to that evidence. The Court of Conciliation should issue the provision of evidence, indicating the date and place to carry out, so the parties could participate in this investigation. However, the appeal did not contain any allegations as to the veracity of the abovementioned evidence. The court may conduct investigation of evidence ex officio and on its own initiative but it should do it only in situations of an exceptional nature.

The Appellate Court did not agree with the “Euro-net” that the circumstances in which the investigation of evidence was conducted required special knowledge, and therefore should be subject to expert opinion. The Court of Conciliation made only a visual overview of the web pages of the plaintiff and the defendant, to which it was not necessary to posses special knowledge in the field of IT. The Appellate Court held that since the issue of the case was the infringement of “Euro-net” rights of protection for trade marks that was allegedly made by Rafał Falęcki in the Internet, therefore the inspection of his websites was sufficient way to determine whether and how the defendant used plaintiff’s trademarks. The expertise is not needed for such action, because a regular Internet user usually does not have such knowledge. It was a regular Internet user who could be mislead, in particular by a risk of associating the domain name with a registered trade marks, as defined in Article 296(2)(ii) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.

2. Infringement of the right of protection for a trademark consists of unlawful use in the course of trade of:
(ii) a trademark identical or similar to a trademark registered in respect of identical or similar goods, if a likelihood of misleading the public, including in particular a risk of associating the trademark with a registered trademark, exists;

However, there were no doubts for the Court that provisions of article 153 of the IPL mean that one cannot infringe the protection rights for a trade mark in the Internet.

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.
2. The term of the right of protection shall be 10 years counted from the date of filing of a trademark application with the Patent Office.
3. The term of protection may, at the request of the right holder, be extended for subsequent ten-year periods in respect of all or of a part of the goods.
4. The request referred to in paragraph (3) shall be submitted before the expiration of a running protection period, however not earlier than one year before the expiration thereof. The request shall be submitted together with the payment of a due protection fee.
5. The request referred to in paragraph (3) may also be submitted, against payment of an additional fee, within six months after the expiration of a protection period. The said time limit shall be non-restorable.
6. The Patent Office shall make a decision on refusal to extend the term of protection for a trademark, where the request has been submitted after the expiration of the time limit referred to in paragraph (5) or the due fees referred to in paragraphs (4) and (5) have not been paid.

According to the Court, one cannot use signs (or its elements) or similar trade marks, in its Internet domain names, if its business deals with selling the same group of products. There was no question that the mentioned above rule belongs to the fundamental socio-economic principles of the legal order of the Republic of Poland. However, in this case, such conditions were not met, bacuse all signs constituting “Euro-net” trade marks and used by Rafał Falęcki lack distinctive character, there was no risk of confusion, and there existed the exclusion of protection of signs as set out in article 156(1)(ii) of the IPL.

1. The right of protection shall not entitle the right holder to prohibit third parties from using, in the course of trade:
(ii) indications concerning, in particular, the features and characteristics of goods, the kind, quantity, quality, intended purpose, origin, the time of production or of expiration of usability period,

There is one thing I wanted to add. I asked the Appellate Court in Warsaw to send me the judgment via e-mail. My request was based on the Polish Act on access to public information. On 14 June 2010 I received an e-mail from the Court.

W związku z wnioskiem z dnia 11 czerwca 2010 r. o udostępnienie informacji publicznej uprzejmie informuję, że opłata za udostępnienie treści wyroku Sądu Apelacyjnego w Warszawie z dnia 16 kwietnia 2008 r. w sprawie o sygn. akt I ACa 1334/07 wraz z uzasadnieniem – zgodnie z Zarządzeniem Nr 130/09 Prezesa Sądu Apelacyjnego w Warszawie z dnia 31 lipca 2009 r. – wynosi 8 zł (1 zł za stronę) – w wersji elektronicznej. Opłatę można uiścić w kasie Sądu, znakami sądowymi lub przelewem bankowym na konto Sądu Apelacyjnego w Warszawie nr 93 1010 1010 0404 1322 3100 0000 z dopiskiem ” informacja publiczna Adm. 0137-119/10″.

I was informed that according to the Decree No 130/09 of the President of the Appellate Court in Warsaw of 31 July 2009, the fee for access to the judgment – is 8 PLN (1 PLN per page) – in the electronic version. I had no time to argue so I decided to pay. However, as you may remember from my post entitled “E-access to public information, case I C 19/10“, price-lists and flat-rate charges for making the public information available, may violate the provisions of the Polish Act of 6 September 2001 on access to public information.

See also “Polish case law on domain names“.

Personal rights, case I ACa 572/11

June 5th, 2010, Tomasz Rychlicki

On 18 January 2010, Michał Okonek, the owner of MAP1 company, filed a petition to the court with a request to order ParaRent.com Wawrzyniak Sp. j. company seated in Szczecin, to block access to the thread entitled “a suit for the use of a part of a map” which is available at www.forumprawne.org website (http://forumprawne.org/prawo-autorskie/501-pozew-za-wykorzystanie-fragmentu-mapy.html) operated by ParaRent.com. Mr Okonek also requested the court to prohibit ParaRent.com to publish of new content concerning Michał Okonek at foras available at forumprawne.org website. Mr Okonek pointed out that ParaRent.com allows its users for posting and sharing information that unjustly accuse him of extorting money, making false statements, misleading the courts and prosecution, intimidation of Internet users, even for distributing of pornography. Moreover, users of forumprawne.org called Mr Okonek as the swindler and the parasite, while he only uses the right to sublicense the use of copyrighted works such as digital maps.

The District Court in Szczecin in its decision of 4 February 2010, case file I Co 26/10 sided with Mr Okonek and issued the order blocking the aforementioned thread. ParaRent decided to appeal.

The Appellate Court in Szczecin in its decision of 18 May 2010, case file I ACz 296/10 overruled the ban. The Court held that in cases filed against the public media, for the protection of personal rights/property, the court may refuse to grant an injunction against publication of given information if the important public interest opposes such injunction/ban.

Michał Okonek filed another lawsuit against ParaRent.com, for the protection of personal rights and compensation. The case was linked with a blocked thread. The District Court in Szczecin VIII Economic Division in its judgment of 5 May 2011 case file VIII GC 106/10 dismissed the complaint. The Court ruled the administrator of forumprawne.org website cannot be held responsible for comments that appeared on his website, unless Mr Okonek proves that the content of posts/comments was illegal, and the fact that the administartor had knowledge regarding such posts or comments, or received information from a reliable source regarding such posts or comments, and that the administrator did not fulfill his duty to disable access to such illegal content. All these prerequisite must be met together. The Court ruled that the administrator cannot arbitrarily interfere with the content published by users. These limits are set by the TOS of the forum website and the law. The Court noted that too much interference may lead to violation of freedom of expression, and thus it may also be an infringement of personal interests of users. The Court has also interpreted the meaning of the “credible information” of the illegal character of the stored data as provided in the Article 14 the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments.

1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.
2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.
3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.

For the adoption of the credibility of information, it is necessary to show that on the basis of credible information, the ISP had an objective opportunity to assess the illegality of data placed on the Internet by the customer. A different interpretation – that each request of an interested person (legal or natural) results in receiving of credible information of the illegal character of the stored data, would cause that, in principle, anyone whose activities fall within the online forum discussion, could remove data with reference to the violation of personal interest, and it would end any discussion. As the Court noted, such situation would be against the principle of freedom of expression and the essence of Internet activity. The Court also ruled that a complext topic on Map1 actions against Internet users, which appeared in a short period of time shows great interest in the subject and proves the difficulties of the current monitoring, which, moreover, is not a responsibility of the ISP. The Administrator is not a forum editor, the users of this forum are themselves. Mr. Okonek became a public figure and therefore he should more callous. The Court decided that the administrator had acted properly moderating only part of the disputed posts.

Mr Okonek appealed. The Appellate Court in Szczecin in its judgment of 26 October 2011 case file I ACa 572/11 dismissed the complaint.

Unfair competition, case I ACa 1270/10

May 11th, 2010, Tomasz Rychlicki

The Warsaw Court of Appeal in a judgment case file I ACa 1270/10, held that a failure to enforce one’s trademark protection can lead not only to the expiration of the protection right but even to an entire forfeiture of the right.

The unfair competition dispute between the Croatian Podravka (and its Polish daughter company – Podravka Polska) and Marina Maziarny – Hungarian producer of the equivalent of the Podravka’s spice (Węgierska Virgin Przyprawka) has been on for quite some time. The claimant in this case – Podravka, raised that the Hungarians use marks that are dangerously similar to those used by Podravka in Poland for almost 20 years. The marks in question present a cook with a bouquet of vegetables on a blue background. The respondents claimed that this type of logo had become standard in the spice industry, hence loosing any distinctiveness, primarily due to the “lack of activity on the part of the Croatians”.

Vegeta Podravka

Additionally, they raised that any potential claim the Croatians might have had, had long expired. Pursuant to article 20 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No. 47, item 211, with later amendments, the statute of limitation for the unfair competition claims arising under the Act shall be 3 years (very much the same as in case of trade mark infringements). In the meantime (in 2003), Podravka Polska became aware of the infringement. However, it waited to file the lawsuit for 5 years (sic!), and finally did in 2008. And because of that undue delay, the court of I instance dismissed the suit justifying that if the daughter company had been aware of the infringement, so must have had the mother company. Podravka stressed that when it came to this particular type of infringement, each and every violation (i.e. each subsequent pitch of illegally marked goods) constituted a separate infringement, from the date of which the statute of limitations ran anew. And because the last pitch of the infringing goods was sold by the respondents in 2007, the statute of limitation has not run yet. But the Court of Appeals held differently. According to the Court, it is only the very first infringement that matters when it comes to computing the 3 years’ statute of limitation. However, the Court emphasized that this should apply solely to the Polish daughter company as it could not be proved with certainty that the Croatian mother company had been aware of the infringements already back in 2003. As as result, the Court decided that this aspect of the case should be remanded for more thorough investigation.

Once again, it has been shown that the issue of the statute of limitation in unfair competition claims can be highly troublesome and complicated. It also teaches a lesson that every IP right holder should be aware of the fact that his inaction in terms of the enforcement might not only result in the expiration of the statute of limitation but also in the dilution of his right via the strengthening of the competitor’s brand.

Press law, case VII Ka 715/09

March 7th, 2010, Tomasz Rychlicki

Two partners of a civil partnership have been accused that in the period from 10 April 2002 to 4 June 2006, they have been acting jointly and in the agreement, and they have been publishing without the adequate and propert registration a periodical entitled “www.bielsko.biala.pl” that was available in the Internet, i.e., they were accused of commiting an offense under Article 45 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.

Anybody who publishes a daily newspaper or a periodical without registration or with registration suspended is subject to a fine penalty or the restriction of liberty.

The Prosecutor from the Regional Prosecution Office in Bielsko-Biala wrote clearly in the indictment act file 2 Ds. 196/08/MŁ, that Article 45 of the APL protects freedom of press.

The Regional Court in Bielsko-Biała in a judgment of 2 June 2009, case file IX K 2011/08, found them guilty. The defendants appealed.

The District Court in Bielsko-Biała, VII Criminal Appeals Division, in a judgment of 14 January 2010, case file VII Ka 715/09, has overturned the earlier sentence and discontinued the criminal proceedings. The court agreed with the court of the first instance that the accused persons commited the offence, however, the court also ruled that the degree of social harmfulness of their activity was minimal. By performing the publishing activities without the registration, both defendants did not cause anyone any harm.

What is more interesting, on 18 April 2008 both partners and later the accused persons, have applied for the registration of press activity/publishing in the form of a website available at www.bielsko.biala.pl. The request contained information that the website is updated daily. The District Court Civil Division I, in a decision of 5 June 2008, case file NS Rej. Pr. 12/08 k. 26-27, ordered the entry of the “www.bielsko.biala.pl” press title into the Register of Daily Newspapers and Periodicals.

See also “Press law, case VI Ka 409/07” and “Press law, case II K 367/08“.

Personal interest, case I A Ca 1202/09

March 3rd, 2010, Tomasz Rychlicki

Nasza-Klasa.pl website is a very popular Polish social networking service bringing together classmates. It provides its users with a possibility to contact and search for old friends. In 2008, an unknown person created an account for the name of Dariusz B., The fake profile included his personal data: name, place of residence, phone number, age and images. This account was set without the knowledge and the consent of Dariusz B. Many offensive comments were sent from this fake account to other users of the portal. These comments provoked negative emotions and responses from its recipients. Dariusz B. and his wife, tried to apologize to every person they met. Dariusz B. was also forced to change his phone number, and met with harsh comments from friends, and especially from the strangers. Maria B. – wife of Dariusz B. contacted Nasza-Klasa.pl by e-mails with the request to remove or to block the fake account. When it did not bring any results, they brought a lawsuit against Nasza-Klasa.pl.

Nasza-Klasa.pl was found responsible by both the District and the Apellate courts because it has not removed, or at least not immediately blocked the fake account, created in the name of Dariusz B., thereby making violations of his personal interests possible.

The Appellate Court in Wrocław in its judgment of 15 January 2010 case file I A Ca 1202/09 ruled that nature of the infringement performed by Nasza-Klasa.pl was to allow a third party to encroach on personal rights of Dariusz B., by not fulfilling its obligations under the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments.

Article 14
1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.

2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.

3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.

According to the Court, Nasza-Klasa.pl did not immediately block, and then delete the questioned fake account. Therefore, it forced Dariusz B. to bear a humiliating behavior caused by another person, which in consequence violated his serenity, good mood, sense of personal dignity, i.e. his personal interests. However, the Court did not agree with the argument that the standard of conduct, professionalism, requires the administrator to filter and delete statements that violate the law or may violate the law in an objective view, without a prior notice regarding such event. Putting such a requirement would be contrary to the provisions of Articles 14 and 15 in connection with Article 12 of the PSEM.

Personal interest, case I ACa 1176/09

February 26th, 2010, Tomasz Rychlicki

In the summer of 2008, a popular Polish tabliod Super Express published a nude picture of Justyna Steczkowska that was taken on a Turkish beach during her holidays. The singer sued the publisher for the violation of privacy interest. The Appellate Court in Warsaw in a judgment of 24 February 2010, case file ACa 1176/09, awarded Justyna Steczkowska 80000 PLN compensation and ordered Super Express to publish an apology. The court held that there is no implied consent to the intrusion into privacy, even though it was the hotel’s private beach and a photographed person wasn’t too cautious.

Internet domains, case I ACz 232/10

February 14th, 2010, Tomasz Rychlicki

As polite fans would probably say, the condition of Polish football is at least “debatable”, and others might use more crude words. The corruption and inefficient management of the Polish national football leagues are the tip of the Iceberg. This situation causes frustration of many people who try to blame the Polish Football Association (PZPN) for all their miseries. Some of these people decided to take matters into their own hands. They formed the Association of Defenders and Supporters of the Polish Football. They registered koniecpzpn.pl (end of Polish Football Association) as an Internet domain name and started to host a website with critical publications on PZPN under that domain. One didn’t need to wait too long before lawyers representing the Polish Football Association entered “the game”. New players acting on behalf of the Polish Football Association requested the court to issue a preliminary injunction in order to secure the case for the future action for trade mark protection and for the protection of personal rights.

The District Court in Lódż, I Civil Division, in its order of 14 January 2010, case file I Co 203/09 granted the injunction and ordered the prohibition of placing at koniecpzpn.pl website the following trade marks owned by PZPN: R-142616, R-170024, R-188961 and R-188962, the Court also ordered a block on the access to the content of the website available under www.koniecpzpn.pl domain name. The Court set the PZPN a two-week deadline for lodging the petition instituting proceedings for trade mark protection and the protection of personal rights under the pain of withdrawing the injunction in case no lawsuit was filed by that date.

The Appellate Court in Łódź in its decision of 24 March 2010 case file I ACz 232/10 annulled the injunction. The Court held that PZPN did not exactly specified which claims it intends to enforce. The Court ruled that all claims should be precisely specified in the request because the lack of precise claims make impossible to verify whether conditions for the injunction are met, i.e. whether the claim is reliable and the applicant has legal interest (locus standi) in enforcing it. The Court also noted that the injunction would be unduly restrictive and burdensome beyond measure. According to the Court the blocking of a website could be considered as inadmissible preventive censorship.

See also “Polish case law on domain names“.

Personal interest, case I ACa 949/09

February 9th, 2010, Tomasz Rychlicki

Since a couple of years he is a very controversial figure of the Polish Internet and he also has become the cause of two interesting judgments which I am going to report. Arnold Buzdygan appeared on different Polish newsgroups, where he wrotre, inter alia, on topics such as copyright, sexology, psychology and politics. His style of writing was, at least, very controversial. Due to the vulgarity of some of his statements (he claimed that such actions were performed by his followers who allegedly used his name), offers to make a bet and announcements of lawsuits and threats of beatings, a part of the Usenet community defined these behaviors as trolling and such informations was posted in the Polish Wikipedia’s entry devoted to Buzdygan’s persona. Arnold Buzdygan decided to sue.

In the petition for libel filed against the Association Wikimedia Poland and Agnieszka K., he demanded an order to remove the existing contents of the article Arnold Buzdygan in both English and Polish-language versions of Wikipedia, and to put the apology instead of these entries, and to block the possibility of future edition of the questioned article, He also requested the Court to order the Association Wikimedia Poland to pay him the compensation of moral injury and the costs of the process in the sum of 100000 PLN.

In the response to a petition, the Association of Wikimedia Poland requested the Court to dismiss the claim, pointing that such charges cannot be brought against it because of the lack of the so-called “passive legitimacy”. Wikimedia Poland stated that neither the Association itself, or persons acting on its behalf are not engaged in editing of the article on Arnold Buzdygan, Wikimedia Poland argued that it is not a database administrator of Wikipedia or administrator of the servers on which the information is stored, so it would not be possible to remove or permanent blocking of such entries.

The District Court in Wrocław dismissed the suit in judgment of 8 June 2009, case file I C 802/07. Buzdygan appealed, and his petition was dismissed by the Appellate Court in Wrocław in a judgment of 17 November 2009, case file I ACa 949/09, published in Orzecznictwo Apelacji Wrocławskiej, Biuletyn Sądu Apelacyjnego we Wrocławiu, No 1 (13), p. 5, Year MMX. The court ruled that the statements published in the disputed article and the mention of trolling do not infringe on Buzdygan’s personal rights. Descriptions of Buzdygan’s activity on different forums, though they may have a pejorative connotation, were the evaluation of the expression of views issued by Arnold Buzdygan, not the description of himself. The wording that was challenged by Buzdygan does not refer to his person, but it concerned the way of formulation of his speech in a public discussion, and the measure of negative evaluation did not exceed the permissible limit.

An active participant of online forums, being a well-known and recognizable in such community is, in this sense, a “public personality”. As a public person, participating in discussions, one agrees and must reckon with the fact that his or her opinions and statements will be subjected to criticism by other users, sometimes very radically and one has to demonstrate greater tolerance and even resistance to unfavourable and unflattering opinions, and even violent attacks. The boundaries of acceptable criticism are wider in fact, than in the case of persons not participating in such discussions. The evidence proceedings during the hearings has shown that Buzdygan was and is very active participant in online forums, and he is a known figure. By applying the test of the higher degree of tolerance for unflattering opinions, the Court found that the wording of the Wikipedia entry devoted to Arnold Buzdygan did not exceed the agreed and acceptable standard.

See also “Computer crime, case V K 1595/08“.

Internet domains, case I ACa 272/06

February 8th, 2010, Tomasz Rychlicki

The Appellate Court in Katowice in its judgment of 16 June 2006 case file I ACa 272/06 ruled that it is pointless to talk about the “ownership” of Internet domains, because the civil law sets the property rights in Article 140 of the Civil Code, which only refers to tangibles, and domains are not such things, and further, due to the closed list of property rights in intangibles (the so-called numerus clasus of IP rights – the principle that the system of estates allows only a limited number of property rights available in a legal system), there are no regulations in the Polish law, which suggests that the effect of registering Internet domain names is, to acquire by the subscriber, the right to use and dispose of the domain. The agreement between the subscriber and the Internet domain registrar is a contract to provide telecommunications services within the meaning of Article 1(1) 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. The subscriber may transfer his or her claims (contractual claims against the registrar) to another entity, if it comes with the assumption of debt from subscriber fees.

I realize that this differs significantly from the US law. Easpecially if you read Kremen v. Cohen, 335 F.3d 1035, (9th Cir. 2003).

The parties do not dispute that domain names are a kind of property. This proposition appears to be consistent with California’s broad definition of “property.” See Cal. Civ.Code §§ 654 & 655(property includes “all inanimate things which are capable of appropriation or of manual delivery”). The parties disagree, however, whether a domain name like sex.com is the kind of intangible property that can support a claim for conversion. At issue is whether such intangible property constitutes a sufficiently definite right and whether such intangible property must also be merged into a document or other writing.

Same opinions were issued in Harrods, Ltd. v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002), Caesars World, Inc. v. Caesars-Palace.Com, 112 F. Supp. 2d 502 (E.D. Va. 2000) or In re Larry Koenig & Assoc., 2004 WL 3244582 (Bankr. M.D. La. 2004). But there are also different judgments such as Dorer v. Arel, 60 F. Supp. 2d 558 (E.D. Va. 1999), Zurakov v. Register.com, Inc., 304 A.D.2d 176, 760 N.Y.S.2d 13 (1st Dep’t 2003), Network Solutions, Inc. v. Umbro International, Inc., 259 Va. 759, 529 S.E.2d 80 (2000) and the latest I know which is Palacio del Mar Homeowners Assn., Inc. v. McMahon, — Cal.Rptr.3d —, 2009 WL 1668294 (Cal. App. 4 Dist. June 16, 2009). The Court ruled that a domain name registration is not property, but merely supplies the intangible contractual right to use a unique domain name for a specified period of time. Does it sound familiar to you?

See also “Polish case law on domain names“.

Copyright law, case I CSK 160/09

January 11th, 2010, Tomasz Rychlicki

The Polish Supreme Court in its judgment of 16 November 2009 case file I CSK 160/09 confirmed that no consent of the portrayed sportsmen is necessary for the athletics association to make such images available to the sponsors. The judgment came out as a result of a heated dispute between the Polish national football (soccer) team player Maciej Żurawski and TP S.A. (a telecommunication company) – the official sponsor of the team. The dispute regarded the unauthorized dissemination of Żurawski’ s image by TP S.A. in its various advertising and informational materials (such as fliers, posters, press and television). Żurawski desired that TP S.A. ceased to publish and disseminate his images and that it publicly apologized to him. The proceedings were joined by the Polish Football Association (PZPN) as a third party defendant. The bone of contention in this case were the pictures taken during the photo shoot of the national soccer team prior to the world championship in Germany in 2006. The story goes that in 2004, PZPN entered into a sponsorship agreement with TP S.A., pursuant to which PZPN obliged itself to:

1) allow TP S.A. to use the pictures of the national team in all of TP S.A. advertising and informational materials; and
2) to obtain the respective players’ consent to do so.

In 2006 the national football team participated voluntarily in a photo shoot. All players were duly informed as to what purposes the pictures would serve, and how they would be used. However, no formal consent forms were signed. The players did not sign any Representative’s Cards (which explicitly stated the player’s obligation to participate in events such as i.e. the photo session in question) either. Additionally, none of the players received any remuneration for the photo session. And that’s what’s most problematic in this case. Pursuant to article 81 of 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, the right to disseminate the image of a person does not require the consent of that person (unless explicitly stated otherwise) if that person had received an agreed to remuneration.

The Court of first instance found for Zurawski, however the appeal court reversed and dismissed the case. The reason of that were differing interpretations of article 33(2) of the Act on Qualified Sports – AQS – (in Polish: Ustawa o sporcie kwalifikowanym) of 29 July 2005, Jurnal of Laws (Dziennik Ustaw) No 155, item 1298, with subsequent amendments, which was relied on by TP S.A. and PZPN in their argumentation.

each member of the national team, grants an exclusive right to his/her image in the national representation team outfit, to an appropriate athletics association, which is then entitled to use that image for economic purposes within the scope set forth in the Statute of that association or other international organization active in that field.

However, the very same article in sec. 2 states that the representative does indeed give his/her consent to disseminate his/her image in the national representation team outfit, however he/she does that within the meaning of article 81(1) of the ARNR. And this led to two different interpretations by two different courts: court of I instance held that article 33(2) of the AQS creates a direct duty to obtain a separate consent from the sportsman, whereas the appeal court found that such consent is impliedly given the moment the athlete (here football player) joins the national team. The SC agreed with the latter interpretation, stating that by joining the national team the player does indeed agree to a significant limitation on his right to image, whenever the image consists of him in the national representation’s outfit. Other than that he retains full rights to his right to publicity (in particular image). Hence, Żurawski ultimately lost the case.

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

Administrative, civil and criminal proceedings in trade mark cases in Poland

December 22nd, 2009, Tomasz Rychlicki

I. The Law
The main sources of binding laws in the Republic of Poland are the Constitution of 2 April 1997, acts passed by the Parliament, ratified international treaties and regulations issued, for example, by the Prime Minister or the Council of Ministers – Polish government. Regulations are issued for the purpose of implementation of acts. The main legal acts on trade mark protection in the Republic of Poland are the following.

I.A. Substantive law

  • The old Polish Trade Mark Act – TMA – (in Polish: Ustawa o znakach towarowych) of 31 January 1985, Journal of Laws (Dziennik Ustaw) No 5, item 15, with subsequent amendments.
  • Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.
  • Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No 47, item 211, with subsequent amendments

I.B. Procedural law

  • Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.
  • Act on proceedings before administrative courts – PBAC – (in Polish:Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270, with subsequent amendments.
  • Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments
  • Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments.
  • Act on Patent Attorneys – APAT – (in Polish: ustawa o rzecznikach patentowych) of 11 April 2001, Journal of Laws (Dziennik Ustaw) No. 49, item 509, with subsequent amendments,

I.C. EU law
Since 1 May 2004 which was the accession day to the EU, the Republic of Poland has been bound by all aquis communitaire including the Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (CTMR). The CTMR is a part of the Polish Legal system and is directly aplicable by Polish Courts, especially by 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).

II. Different routes, different proceedings
The right of protection for a sign being capable to be registered as a trade mark is granted by the Patent Office of the Republic of Poland (PPO). Trade mark holders in the Republic of Poland may protect their rights in civil and criminal proceedings. Moreover, they may also use the procedures before customs authorities.

The Republic of Poland is not a common law country and the courts are not bound by decisions of other courts. However Polish judges tend to widely recognise the decisions and verdicts of the Polish Courts of Appeal and the Polish Supreme Court. Only resolutions of the Supreme Court that are decided as a legal principle are universally binding. The decisions of foreign bodies such as the General Court and Court of Justice of EU may be recognised only as so-called persuasive precedents.

II. A. Administrative proceedings in trade mark cases
The Patent Office of the Republic of Poland is a central government agency responsible inter alia for receiving and examination of applications seeking protection for trade marks and deciding in matters related to granting rights of protection trade marks (decisions with regard to processing of national and International trade mark applications, decisions on the invalidation and the lapse of the right of protection for a trade mark etc.). The provisions of the Code of Administrative Proceedings shall apply accordingly to litigation procedure before the Patent Office in cases not regulated by the IPL. Decisions made or orders issued by the PPO are liable to complaint lodged to the Voivodeship Administrative Court (VAC) in Warsaw. Judgments made by the VAC may be a subject of a cassation complaint filed before the Supreme Administrative Court (SAC).

II. B. Civil proceedings in trade mark cases
Trade mark infringement actions are brought before a District Court. There are no specific courts which have exclusive jurisdiction for resolving trade mark disputes, except the Court for Community Trade Marks and Community Designs which is strictly focused on the legal issues related to CTMs.

The Law on Industrial Property provides that a trademark owner’s rights will be deemed to have been infringed where there has been unlawful use of the mark in the course of trade, including unauthorized use of a trademark by a licensee and sublicensee. The remedies available to the trademark owner are as follows:

  • cessation of the infringement,
  • surrender of any unlawfully obtained profits,
  • compensatory damages in accordance with the relevant principles of the Civil Code or payment of a lump sum equivalent to a licence fee, or any other remuneration, which would have been due if the infringer had been authorized by the right holder to use the trademark. In this case, the trademark owner is obliged to prove that an intentional infringement of its rights has taken place,
  • announcement to the public of a verdict of the court (upon the request of a trade mark owner) as a whole or in part, or publication of information regarding the verdict,
  • a court order that the infringer (upon its own request, in case of unintentional infringement) to pay the relevant sum to the benefit of the trade mark owner if the cessation of infringement or forfeiture of the goods held by the infringer (means of manufacturing, materials) would be excessive, and the above-mentioned sum to be paid would fulfil the right holder’s interest.

The following cases, in particular, are also decided in civil law proceedings in accordance with the general principles of law:

  • for ascertainment of the authorship of an inventive project,
  • for ascertainment of the right to a patent, a right of protection or a right in registration,
  • for remuneration for the exploitation of an inventive project,
  • for remuneration for the exploitation of an invention, a utility model or a topography for state purposes,
  • for compensation for the transfer to the State Treasury of a right to a patent for a secret invention or to a right of protection for a secret utility model, a right of protection or a right in registration,
  • for infringement of a patent, a supplementary protection right, a right of protection or a right in registration,
  • for ascertainment of the right to exploit an invention, a utility model or an industrial design in the cases referred to in Articles 71 and 75 of the IPL,
  • for ascertainment of the right to use, in a local-scale activity, a mark registered on behalf of a third party as a trademark,
  • for ascertainment of the right to use a geographical indication,
  • for ascertainment of the loss of the right to use a geographical indication,
  • for the transfer of a patent, a right of protection for a utility model or a right in registration of an industrial design or a topography obtained by a person not entitled thereto,
  • for the transfer of a right of protection for a trad emark in the case referred to in Article 161 of the IPL.

II. C. Criminal proceedings in trade mark cases
The IPL defines counterfeit trademarks as identical trademarks illegally used or trade marks which in the course of trade can not be distinguished from the trade marks registered for the goods covered by the right of protection. The party aggrieved by the infringement has to commence a criminal action. Only after the filing of the motion can the proceedings be started and continued ex officio. The sole exception is when a person committing the crime in respect of a registered trade mark obtains permanent profits from its criminal activity or commits acts resulting in the turnover of counterfeit goods bearing the trade mark, which are of significant value. In such case the infringer is subject to more serious criminal penalties and proceedings will be started ex officio.

II. D. Custom seizures
Customs law, in addition to civil and criminal law, is the third administrative regime of protection for trade mark rights. Provisions of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property are directly aplicable on the territory of the Republic of Poland. The application for action shall be submitted to the Polish Customs Chamber seated at Modlińska 4 Street, 03-216 Warsaw.

II. E. ADR in trade mark cases
Where a domain name including a sign that has been registered as a trade mark by an unauthorized third party, the trade mark holder can use mediation, alternative dispute resolution (ADR) proceedings or civil court action to obtain the cancellation or transfer of such a domain. See also “Polish case law on domain names“.

Polish case law on copyright

December 9th, 2009, Tomasz Rychlicki

A more detailed discussion about each judgment may be found under the link provided with the case file. All judgments are presented in the chronological order.

– The judgment of the Regional Court in Lublin of 27 March 2015 case file I Ns 700/12.

– The judgment of the Constitutional Tribunal of the Republic of Poland of 17 February 2015 case file K 15/13.

– The judgment of the Appeallate Court in Warsaw of 7 May 2014 case file I ACa 1663/13

– The judgment of the Supreme Court of 27 June 2013 case file I CSK 617/12.

– The judgment of the Appeallate Court in Lublin case file I ACa 134/13.

– The order of the Appeallate Court in Białystok of 7 February 2013 case file I A Cz 114/13.

– The judgment of the Appellate Court in Warsaw of 27 October 2011 case file VI ACa 461/11.

– The order of the Polish Supreme Court of 26 October 2011 case file III CZP 61/11.

– The judgment of the Supreme Court of 21 October 2011 case file IV CSK 133/11.

– The judgment of the Supreme Court of 17 October 2011 case file III CSK 30/11.

– The judgment of the Constitutional Tribunal of the Republic of Poland of 11 October 2011 case file P 18/09.

– The judgment of the Supreme Court of 15 June 2011 case file V CSK 373/10.

– The judgment of the Supreme Administrative Court of 21 July 2011 case file I OSK 678/11.

– The judgment of the Supreme Court of 25 May 2011 case file II CSK 527/10.

– The judgment of the Voivodeship Administrative Court in Gdańsk of 26 January 2011 case file II SA/Gd 529/10.

– The judgment of the Supreme Court of 26 January 2011 case file IV CSK 274/10.

– The order of the Supreme Administrative Court of 21 December 2010 case file I OSK 1975/10.

– The judgment of the Voivodeship Administrative Court in Łódź of 20 December 2010 case file II SAB/Łd 53/10.

– The judgment of the District Court in Warsaw of 14 September 2010 case file I C 626/06. Not final yet.

– The judgment of the Supreme Court of 13 July 2010 case file III CZP 1/10.

– The judgment of the Supreme Court of 22 June 2010 case file IV CSK 359/09.

– The judgment of the Appellate Court in Lublin case file I ACa 206/10.

– The judgment of the Polish Supreme Court of 16 November 2009, case file I CSK 160/09.

– The decision of the Constitutional Tribunal of 21 October 2009, case file P 31/07.

– The judgment of the Supreme Court of 27 February 2009, case file V CSK 337/08.

– The judgment of the Supreme Court of 19 June 2008, case file V CSK 22/08.

– The judgment of District Court in Tarnów of 20 December 2007 in re: Bochnia Independence Half-Marathon, case file I C 238/06.

– The judgment of the Supreme Court of 6 December 2007 case file III CZP 107/07.

– The judgment of the Appellate Court in Warsaw of 17 October 2007 case file VI ACa 1259/06.

– The judgment of the Appellate Court in Warsaw of 29 June 2007 case file VI ACa 210/07.

– The judgment of the Appeallate Court in Warszawa of 11 May 2007 case file I ACa 1145/06.

– The judgment of the Supreme Court of 3 January 2007 case file IV CSK 303/06.

– The judgment of the Appellate Court in Warsaw of 14 March 2006 case file VI ACa 1012/05, published in the Jurisprudence of Appellate Courts (in Polish: Orzecznictwo Sądów Apelacyjnych) of 2007, No 12, item 36, p. 56.

– The judgment of the Supreme Court of 25 January 2006 case file I CK 281/05, published in the Supreme Court’s Bulletin of 2006, No 5, the Jurisprudence of the Supreme Court, the Civil Chamber (in Polish: Orzecznictwo Sądu Najwyższego Izba Cywilna) of 2006, No 11, item 186, p. 64, the “Wokanda” magazine of 2006, No 7-8, p. 17.

– The judgment of the Supreme Court – Civil Chamber of 13 January 2006 case file III CSK 40/05, published in the Supreme Court’s Bulletin of 2006, No 3, the “Wokanda” magazine of 2006, No 6, p. 6, the Review of Economic Legislation (in Polish: Przegląd Ustawodawstwa Gospodarczego) of 2006, No 7, p. 32.

– The judgment of the Supreme Administrative Court of 13 October 2005, case file FSK 2253/04.

– The judgment of the Polish Supreme Court of 23 November 2004, case file I CK 232/04.

– The judgment of the Supreme Court of 3 December 2003 case file I CK 312/02.

– The judgment of the Supreme Court of 7 November 2003 case file V CK 391/02, published in OSN 2004, No 12, item 203.

– The resolution of the Supreme Court – Criminal Chamber of 21 October 2003 case file I KZP 18/03.

– The judgment of the Supreme Court – Civil Chamber of 15 November 2002 case file II CKN 1289/00, published in the Supreme Court’s Bulletin of 2003, No 6, p. 7, the Jurisprudence of the Supreme Court, the Civil Chamber (in Polish: Orzecznictwo Sądu Najwyższego Izba Cywilna) of 2004, No 3, item 44, p. 66.

– The judgment of the Supreme Court – Civil Chamber of 26 September 2001 case file IV CKN 458/00, published in the electronic database Legalis.

– The judgment of the Supreme Administrative Court of 30 June 1999 case file I SA/Lu 408/98, unpublished.

– The judgment of the Supreme Court of 26 June 1998 case file I PKN 196/98, published in the Jurisprudence of the Supreme Court, the Chamber of Administrative, Labour and Social Insurance (in Polish: Orzecznictwo Sądu Najwyższego Izba Administracyjna, Pracy i Ubezpieczeń Społecznych) of 1999, No 14, item 454.

– The judgment of the Appellate Court in Warsaw of 2 October 1996 case file I ACa 2/96.

– The judgment of the Appellate Court in Warsaw of 12 December 1995 case file I ACr 590/95, published in OSA 1997, No 3, item 16, at page 32.

– The judgment of the Appellate Court in Warsaw of 5 July 1995 case file I ACr 453/95, unpublished.

– The judgment of the Supreme Court of 5 October 1976 case file IV CR 127/7613.

– The judgment of the Supreme Court of 19 September 1975 case file I CR 312/75.

– The judgment of the Supreme Court of 25 April 1973 case file I CR 91/73.

– The judgment of the Supreme Court of 10 February 1970 case file I CR 666/69, published in OSP 1972, No. 2, item 30.

– The judgment of the Supreme Court of 8 November 1932 case file II. 1K. 1092/32, published in Zb. Orz. 1933/I item 7.

See also “Polish regulations on copyright“.

Copyright law, case V CSK 22/08

November 16th, 2009, Tomasz Rychlicki

The Society of Authors and Publishers Polish Book from Kraków (in Polish: Stowarzyszenie Autorów i Wydawców Polska Książka w Krakowie) is one of the Polish collecting societies. The Society sued Euroimpex company which is a distributor of reprographic equipment, mainly photocopiers and scanners. The suit was based on Article 20(1)(ii) of of 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.

1. The producers and importers of tape recorders, video recorders and other similar apparatus, or blank material for the recording of works with the aid of such apparatus for personal and private use, and also of reprographic apparatus shall be obliged to pay, for the benefit of the creators and performers of the said works and of the producers of phonograms and videograms, fees in an amount not exceeding 3% of the selling price of the said apparatus and material.
ii. The amount of the fees referred to in paragraph 1 shall accrue:
(1) to the creators for 50%,
(2) to the performers for 25%,

The District Court in Kraków ordered Euroimpex to pay the reprographic fee in the amount of 124,678 PLN. Euroimpex filed an appeal in which it argued that the provisions of ARNR are unconstitutional. However, the Appellate Court in Kraków shared the opinion issued by the District Court and ruled that there is a lack of grounds to question the compliance of article 20(1)(ii) and article 105(2) of the ARNR with the constitutional norms.

Article 105
1. The collective administration organization shall be presumed qualified to carry out the administration and protection of rights in the areas of exploitation in which its administration is conducted, and to engage in judicial proceedings associated therewith. This presumption may not be invoked where two or more collective administration organizations claim competence in respect of one and the same work or performance.
2. In the course of its activity the collective administration organization may demand that information be communicated to it and that documents that are essential for the calculation of the amount of remuneration and fees that it claims be delivered to it.

A similar view was also expressed in relation to provisions of the Regulation of the Minister of Culture of 2 June 2003 on designation of categories of devices and media used for recording of productions and payments levied on sales of these devices and carriers carried out by producers and importers, Journal of Laws (Dziennik Ustaw) No. 105, item 991. Euroimpex filed a cassation complaint.

The Supreme Court in a judgment of 19 June 2008, case file V CSK 22/08, ruled that according to the settled case law, any court, in principle, has the same power to assess whether the provisions of regulation that may be applicable in a given case are not inconsistent with the Constitution. Additionally, the SC ruled that the provisions related to the remuneration fees are justified and their introduction was an expression of global trends in intellectual property law that was also made in order to compensate authors and publishers for what they lose by copying or reproduction of works made by third persons for the personal use. These are the civil law claims, which the collecting societies have the right to collect and which they are allowed to claim before the court. As these fees are divided, is no longer a matter to be decided by the Court, but it is the inner matter of organization and artists who are members of this organization.

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

Trade mark law, case I ACa 228/08

September 9th, 2009, Tomasz Rychlicki

First, I owe my respectable readers a short explanation what Jarzebiak is.

Jarzebiak is a fruit vodka made of rowan infusion with the addition of fruit distillate and wine distilate and caramel. The drink has bright bronze colour, sometimes there is light or settlements.

One of the varieties of jarzebiak is “jarzebiak izdebnicki”, with the traditions of production reaching the sixteenth century. It is produced in Izdebnik (Lanckorona municipality). This dry vodka with the addition of rowan, herbs and young shoots of pine was also produced at Izdebnik’s manor of Archduke Rainer Habsburg in distillery called “Factory of Health Vodkas and Liquers” in XIX century.

The “Rowan Jarzebiak Vodka” brand is one of the oldest and most recognizable quality vodkas in Poland. The Company Polmos from Sieradz made this vodka as its flagship product. In April 2006, The Company Polmos from Lublin began production of its own jarzebiak. Polmos from Sieradz sued Polmos from Lublin before the civil court, arguing that Polmos Lublin was illegally using the Jarzebiak name for its products. Polmos from Sieradz based those arguments on the fact that, in 1989, the state-owned and subsequently privatized Polmos Companies were engaged in the division of the trade mark portfolio of their State’s monopolistic predecessor. The Jarzebiak Rowan Vodka brand was acquired by Polmos from Sieradz. The Company registered this mark in the Polish Patent Office in 2007, R-204893.

R-204893

Polmos from Sieradz argued that Polmos Lublin committed an act of unfair competition by exploiting the reputation of the Polmos Sieradz product, at the same time damaging the Jarzebiak brand because Polmos Lublin produced less tasteful vodka with a lower alcohol content (36 percent, while that of Polmos Sieradz was 40 percent). This in consequence also allowed Polmos from Lublin to offer a cheaper product.

Polmos Lublin considered its competitor’s arguments unfounded, arguing that jarzebiak was a generic name that identified a type of drink: a rowan-based vodka. In Polmos Lublin’s opinion, such a term could not be monopolized by any company. The Lublin company also noted that the labels of the respective vodkas were very different and argued that customers would not be misled as to which company was a producer of ‘real’ jarzebiak vodka.

Jarzebiak Lublin

The District Court and the Appellate Court agreed with Polmos from Lublin’s arguments. The Appellate Court in its judgment case file Categories: Polish Appeallate Court | Polish District Court | similarity of signs | unfair competition delict.

Press law, case VI Ka 202/09

August 3rd, 2009, Tomasz Rychlicki

This is the continuation of a story described in “Press law, case II K 367/08“. The District Court in Słupsk in its judgment of 18 June 2009 case file VI Ka 202/09 held that gby.pl – a portal website operated by Leszek Szymczak constituted press under the Press law, however, comments posted on this website by the Internauts do not constitute a press material for the content of which the website administrator could be held responsible. The District Court held that the posts are not letters to the editor or are not – as the Prosecutor argued – “quasi-letters” to the editor. The court said that the posting process on an internet forum is made automatically, there is no prior moderation of such messages.

The administrator of a portal website, which allows for posting comments, is the hosting service provider and is subject to regulations included in Article 14 of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments.

1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.
2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.
3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.

The Court ruled that the service provider cannot be held liable for material posted by its users. The court noted that the decision does not mean that no one should be held liable for the posts that contain an offensive material that is a subject to criminal prosecution. The responsibility for this activity should be borne by a direct perpetrator and the prosecution authorities should identify such persons by using the available technical resources (IP addresses). The Prosecution cannot go after the smallest line of resistance and charge the administrators, instead of the actual perpetrators.

See also “Press law, case VI Ka 409/07” and “Internet websites, case I C 1532/09“.

Copyright law, case I ACa 1145/06

August 2nd, 2009, Tomasz Rychlicki

The Appeallate Court in Warszawa in its judgment of 11 May 2007 case file I ACa 1145/06 held that creation of layout and graphic form of the portal, as well as its improvement and change over the use of such a web portal is in the definition of a copyrightable work as provided in the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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.

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

Trade mark law, case I ACa 967/08

July 5th, 2009, Tomasz Rychlicki

The Appellate Court in Poznań in its judgmet of 28 January 2009, case file I ACa 967/08 held that after the introduction of goods bearing a trademark on the market, the right of protection is “exhausted”. This follows directly from the provisions of Article 155(1) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.

Article 155
1. The right of protection for a trademark shall not extend to the acts in respect of the goods bearing that trademark consisting, in particular, of offering the goods or further putting on the market the goods bearing that trademark, where the said goods have earlier been put on the market on the territory of the Republic of Poland by the right holder or with his consent.
2. The right of protection for a trademark shall neither be considered infringed by an act of importation or other acts, referred to in paragraph (1), in respect of the goods bearing the trademark, if these goods have earlier been put on the market on the territory of the European Economic Area by the right holder or with his consent.

3. Paragraphs (1) and (2) shall not apply, where there exist legitimate reasons for the right holder to oppose further commercialization of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.

This means that further market participant has the right to use the trade mark for advertising and information purposes, as long as this does not mislead as to the existence of economic links between the trade mark owner and a person who uses such sign. See also “Trade mark law, case III CK 410/03“.

The Court also ruled that the “pauperization” of a word trade mark means its adoption to the colloquial speech, which involves changing its function from being the name the unit of goods to the description of the species or genus and by enlarging its description on items that are in no way connected with the person entitled to a trade mark. This is usually the result of the existence of the brand for a long time in large areas and of its high popularity and intensive advertising. Such a phenomenon does not limit the exclusive rights of a holder of a registered trade mark and per se does not authorize other entities to use a protected trade mark in their business.

Trade mark law, case V CSK 109/08

April 24th, 2009, Tomasz Rychlicki

VKR Holding A/S from Horsholm sued Polish company OKPOL for trade mark infrigement and the delict (tort) of unfair competition. The suit was based on the provisions of Article 296(2)(iii) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Dziennik Ustaw (Journal of Laws) of 2001 No 49, item 508, consolidated text on 13 June 2003, Dziennik Ustaw No 119, item 1117, with subsequent amendments.

Infringement of the right of protection for a trade mark consists of unlawful use in the course of trade of:
(iii) a trade mark identical or similar to a renowned trade mark registered for any kind of goods, if such use without due cause would bring unfair advantage to the user or be detrimental to the distinctive character or the repute of the earlier trade mark.

The compalint was also based on Article 3(1) the Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No 47, item 211, with subsequent amendments.

The act of unfair competition shall be the activity contrary to the law or good practices which threatens or infringes the interest of another entrepreneur or customer.

The District Court ruled that the figurative element of the trade mark in question, and its characteristic composition, have more influence on consumer awareness and subconscious than does their verbal aspect and that it is therefore necessary to protect VKR Holding’s brand, even if there are differences between the competing signs in verbal aspects. The court held that the signs are similar and that VELUX, being the renowned one, should benefit from the increased legal protection, as compared to “normal” i.e. the later mark of OKPOL company. The Polish company did not agree with such findings and filed an appeal complaint.

R-63259

The Court of Appeal in its judgment of 3 October 2007, shared the conclusions and assessments of the court of first instance that VELUX brand has the status of a reputable and renowned trade mark, and that word-figurative sign OKPOL is similar to VELUX which brings the risk of association between these signs. The risk of confusion is determined by the dominant element that both marks share – the red rectangle. According to the Court there is a similarity between disputed trade marks because of the overall visual impression and there is no significant difference in the word characters. The Court of Appeal also agreed for the admissibility of granting the protection under article 3(1) of the CUC because OKPOL’s action were in Court’s opinion very parasitic. In the Court’s view such behaviour was based on taking the advantage of VELUX’s renown and should be deemed an act of unfair competition, as behaviour contrary to the principles of good practices, which should be based honesty in business.

The Polish company filed a cassation complaint before the Supreme Court of the Republic of Poland in which it asked three important questions:
(a) May a person try to prohibit the use of a registered trade mark, referring to the right of registration of another trade mark?
(b) Is the protection of well-known/renowned trade marks based on the article 296(2)(iii) of the IPL or may it be protected also with reference to the provisions of the Act on combating unfair competition?
(c) How far one person can monopolize the principle of creating trade marks, especially word-figurative trade marks in relation to commonly encountered combination of colours and shapes that are used on the market?

The Polish Supreme Court in its judgment of 23 October 2008 case file V CSK 109/08 agreed with the lower courts that the risk of association should be based on similarity of figurative elements that both trade marks share. In court’s opinion, the overall visual impression is the basis for creating a positive image of VELUX products and it decides on the risk of association, in consequence, enabling for the parasitic use of the mark by the Polish company and which also led to dilution of the distinctive character and reputation associated with the VELUX trade mark.

R-183931

The Court also ruled that, if the use of a registered trade mark infringes on a previously registered trade mark, the infringer should refrain from using his right of protection because it is not a subject to protection based on rules of the civil law. The protection granted by the Polish Patent Office has only a formal aspect and it is governed by the administrative proceedings. In case of trade mark infringement it is up to the civil court to decide during the civil proceedings whether trade mark that was registered later should be afforded legal protection. There is no reason and no need to file a request for invalidation of the right of protection before the PPO.

In the answer to the second question the SC based its answer on the wording of Article 1(2) of the IPL.

The provisions of this Law shall not prejudice the protection of the subject matter referred to in paragraph (1)(i) [i.e. the relationships in the field of inventions, utility models, industrial designs, trademarks, geographical indications and topographies of integrated circuits], provided for in other legal acts.

The protection of renowned trade marks is afforded by both acts. As regards “monopolization”, the SC ruled that the Polish company was banned from using a sign that associates to a specific sign used by the VKR Holding A/S. Accordingly, no-one was granted a protection right to the principle of creating a trade mark. A comparison of the protection provided for in case of infringement of the right of protection for a trade mark with the scope of the protection provided for in the event of an act of unfair competition, it is clear that the scope of protection claims in the CUC is broader. Thus, there isn’t any sufficient axiological justification that in case of the infringement of a famous trade mark, which also involves a breach of good manners, the trade mark owner should be denied wider legal remedies provided for in the CUC. It would be contrary to the fundamental purpose of that Act, which is to ensure the healthy market competition.

Trade mark law, case I CSK 96/08

March 20th, 2009, Tomasz Rychlicki

Lindt & Sprüngli requested the Polish court to prohibit Terravita from offering, marketing or storage chocolate products with a characteristic shape of a seated hare, wrapped in metail foil with clearly marked drawings of nose, bandoline, eyes, ears and tail with bow placed on the neck. Lindt also asked the court to stop the defendant using or affixing “Terravita hare” or its image in advertising and commercial documents, and an order that the defendant withdraw the “Terravita hare” from the market, requiring the defendant to destroy all packagings, packaging designs and dies, molds and other devices intended to produce and direct wrapping the “Terravita hare”.

Lindt's hare

The District Court in Warsaw, 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 22 September 2005 dismissed the action. The court held that the conditions set out in article 9(1)(b) of the CTMR were not met. In the court’s opinion “Goldhase”, “Lindt” and “Terravita” signs that appear on the respective products differentiated them significantly and hence there is no risk of consumer’s confusion. The average consumer of chocolate hares does not perceive the origin of the goods only on the basis of the shape of a hare, but also on the basis of other important and distinguishing elements, including the mark placed on the product, the color of the packaging, its price, the trade mark identifying the manufacturer. The average consumer sees the difference in colour of the packaging of chocolate hares, and these were different in this case. Lindt’s packaging of the hare has the color of gold, red and brown, and Terravita’s are in silver. In addition, the District Court indicated that according to article 159a(5) of the CTMR, the defendant has only the right to prohibit the use of a trade mark on the territory of the Republic of Poland.

Terravita's hare

Lindt brought an appeal. The Appellate Court in Warsaw in its judgment of 6 July 2006 case file I ACa 616/07 dismissed the case. The Court held that the shape and the colour did not inform about the origin of the goods. The form of a sitting hare, Easter eggs or bells do not have a distinctive characteristic. The court similarly assessed the coloring of the aluminum foil placed on chocolate hares. The colour of silver and gold are typical for chocolate products. In this case, the only distinctive elements of both products were sings “Goldhase Lindt” and “Terravita” and they were dissimilar. Accordingly there was no risk of consumers confusion as regards the orgin of goods.

Lind brought a cassation complaint to the Supreme Court of the Republic of Poland. The Court, in its judgment of 13 April 2007, case file I CSK 16/07, ordered the Appellate Court to reconsider the case. The Supreme Court has interpreted the EU law, pointing to the need for a comprehensive assessment of similarity of the disputed signs. Only such an assessment would determine whether there is a risk of confusion.

The Court of Appeal, after rehearing the case, changed its judgment in favour of Lindt. The court found that the Golden hare was introduced by Lindt on the Polish market in 1997 (16 pieces), and 240 pieces in 1998. On March 1999, Terravita purchased in Germany the same form as the form used by Lindt and began producing and marketing of chocolate hares. Therefore the disputed hares share the same shape and size. Both are packaged in foil – gold, or silver, both have a ribbon tied to the neck in bow but Terravita’s is printed on the foil and there is no bell. The Court of Appeal stated that the condition for the likelihood of confusion has been met. The court stressed that Lindt’s Gold hare is well known among consumers of chocolate products. Therefore, there was no doubt to believe that Lindt’s hare has a huge recognition among consumers of chocolate products, especially if its presence on the market was established for more than nine years. With regard to the Terravita silver hare the Court of Appeal held that, although the latter figure was produced using the same form as used by the Lindt, and thus both hares are having the same shape and size but additional drawings and elements preclude similarities.

This time, Terravita brought a cassation complaint. The Supreme Court in its judgment of 3 October 2008, case file I CSK 96/08 held that in the circumstances of this case, there is no doubt that disputed hares are not identical and only its shape is the same, since they are manufactured from the same form. However on the foil of both hares, in a prominent place, one may find adequately put signs “Lindt Goldhase” or “Terravita”, which in fact makes the likelihood of consumer confusion practically excluded. The Court cited its earlier case law. The Supreme Court in its judgment of 1 February 2001, case file I CKN 1128/98, published at OSNC 2001, No. 9, item. 136, held that if word-figurative trade marks are used on the market then the word elements of such signs should have been attributed the distinvtice characteristics. The SC in its judgment 8 April 2003, case file IV CKN 22/01, published at OSP 2004, No. 5, item 61, held that in case of word-figurative trade marks the word element has the distinctive characteristics because it determines the ease of assimilation and the perception by the public. The Supreme Court in its judgment of 14 November 2003, case file I CK 176/02 (unpublished) excluded the risk of confusion in a situation where bottles used by the plaintiff and the defendant had the same shape (as in the facts of this case these bottles came from the same form), but were labeled with various word and images elements. In conclusion, the Court held that in the case of two identical products, one of which concerns the Community trade mark, the likelihood of confusion within the meaning of article 9(1)(b) of CTMR does not exist, if the other characteristics of goods, in particular bearing the word or image, allow them to be clearly distinguished.

Trade mark law, case I ACa 1047

January 15th, 2009, Tomasz Rychlicki

The Appellate Court in Wrocław in its judgment of 30 December 2008 case file I ACa 1047 published in LEX under the no. 519268, held that descriptive signs which present information about the goods, its characteristics, not its origin from the designated entrepreneur, lacks distinctive character. The descriptive elements may be one of the components of the trade mark, such as fitting of a particular word or symbol indicating a characteristic of the goods. Then the sign is assessed as a whole and not only through the prism of one component – a descriptive word, but also other accompanying elements. To acquire the distinctive character, all the symbols (signs) used in the course of trade as a descriptive trade marks, must also include a word which would develop in the collective consciousness of the consumers of the product a clear association between the sign and a product, distinguishing it as originating from a given entrepreneur.

Press law, case VI Ka 409/07

January 14th, 2009, Tomasz Rychlicki

Facts and legal dispute
A Polish TV channel, TVN, in its show entitled UWAGA broadcast footage that criticised the work of a debt collector, Wojciech D., who held office in a Pomeranian town of Bytów. Internauts were prompt to comment on his work. This boiled down mostly to offensive statements, some of which are provided below:

I suggest we lynch the guy, if legal methods failed. It seems that we’ll have to fight impudence with impudence! Citizens!!! This goes out to you.

How about we settled it ourselves, people? We could take him to the woods, take away his clothes and throw him out onto the streets, that would be fun!!!

I was lucky enough not to have anything to do with this guy. I am surprised with those, who had so much trouble with him, though. If he sold my apartment or broke my mum’s hand I would spare some change and call the boys from the hood. They would have known what to do with him ;)

Hang the collector by the balls in the centre of the town, shove a pound or two of drawing pins and broken glass into his ass, but on the other hand he might enjoy that … and let him see what suffering is … the struggle continues….

Fill him with carbide and add some water. Oh, that would be so nice for him, damn bureaucrat. When he fills up with gasses, light him up. A nice effect, only shreds would remain. Still, it’s just wishful thinking, he can be seen no-where around the town. We can’t get him.

The comments were published mainly on the GazetaBytowska. pl (Bytów Newspaper) website, also accessible at gby.pl. The authorities (police and prosecutor) addressed Leszek Szymczak, the administrator of the website, and asked him to hand over particulars of the commentators. The authorities intended to charge those persons with punishable threats addressed at the collector. Leszek Szymczak did not, however, provide the data. The police called the comments “press material” and the Public Prosecutor’s Office in Bytów recognised that the administrator of the website was responsible for the comments published on the gby.pl forum. The Public Prosecutor’s Office also maintained that a website is a daily newspaper, by virtue of which under the press law it needed to be registered. Following the line of reasoning of the prosecutor, Leszek Szymczak ran the gby.pl website (i.e. he published a daily newspaper) without proper registration. The prosecution charged Mr Szymczak with the first accusation – the infringement of Article 45 of the Polish Act of 26 January 1984 on Press law2 – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No 5, item 24, with subsequent amendmets.

Anybody who publishes a daily newspaper or a periodical without registration or with registration suspended is subject to a fine penalty or the restriction of liberty

This was made in connection with article 7(2) pt. 2 of the APL.

A daily is a general-information periodical print or a message transmitted via sound or sound and image published more frequently than once a week.

The manner of registration of dailies and periodicals is provided in Article 20 of the APL.

1. Publishing a daily newspaper or a periodical necessitates registration with a voivodeship court having jurisdiction in the seat of the publisher, hereinafter referred to as ‘the registrar body’. In such cases the regulations of the Code of Civil Procedure on nonlitigious proceedings, together with amendments resulting herefrom, shall apply.
2. A registration application mentioned in section 1 hereof shall include:
1) the title of a daily newspaper or a periodical together with the seat and an exact address of the editorial office,
2) particulars of the editor-in-chief,
3) specification, seat and exact address of the publisher,
4) the daily newspaper’s or the periodical’s frequency of publishing.
3. A registrar court shall substantiate the decision to register a daily newspaper of a periodical only upon a motion.
4. A daily newspaper or a periodical can be published if a registrar body failed to decide upon the application for the registration within 30 days from the day of the submission of the application.
5. Should the information mentioned in section 2 hereof be altered, the registration body shall be immediately noticed.

The prosecution also alleged that Leszek Szymczak published press material featuring criminal content that publicly incited its readers to commit offences. For that reason the prosecution pressed the second charge. Under article 49a of the APL

An editor who unintentionally published press material that featured criminal content mentioned in article 37a hereof, shall be subject to a fine penalty or the restriction of liberty.

Under Article 255 of the Criminal Code3 – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments

1. A person who publicly calls for committing an offence of a fiscal crime shall be subject to a fine penalty, the restriction of liberty or imprisonment for up to two years.
2. A person who publicly calls for committing a crime shall be subject to the restriction of liberty for up to three years.
3. A person who publicly praises the commitment of a crime shall be subject to a fine penalty amounting to up to 180 daily rates, the restriction of liberty or imprisonment for up to one year.

Article 37a of the APL reads

If a person is sentenced for a crime committed by publishing a press material, the court may adjudicate an additional penalty constituting in the forfeiture of the press material.

The prosecution maintained that Leszek Szymczak committed the crime of the nonfeasance of duties. The prosecution did not, however, establish what actually was meant by lynching, or at whom the comments were directed (the collector’s name was not even once mentioned on the gby.pl website).
It is noteworthy that Leszek Szymczak had registered a daily newspaper entitled Gazeta Bytowska when it was published in print4. In the period pointed at in the indictment, that is from April 13, 2004 to January 9, 2006, the court did not pass a decision that would make the registration invalid.

The Regional Court Słupsk in its judgment of 7 March 2007 case file II K 342/06 (with Judge Tadeusz Stodoła presiding) held that the first charge was legitimate, but owing to the minor social harm it remitted proceedings in the case. As for the second charge, the court held that posts of an internet forum indeed constitute press material and as such should be revised by editors and if they encounter inappropriate material, they should delete it. The court failed, however, to point to a specific law regulation that would necessitate Leszek Szymczak to delete any posts from his forum. Also this charge was dismissed. The court focused on the interpretation of the notion of “press material” and in this venture interpreted it correctly. The rub, though, remains in the fact that in this case the utmost importance should have been attached to the interpretation of the notions of a “daily newspaper” and a “periodical” since only those two kinds of press need to be registered with a court. Both parties appealed Leszek Szymczak appealed to overrule the judgment and dismiss the charge punishable under article 45 of the APL. He substantiated his appeal with, first of all, Article 17(1)2 of the Criminal Proceedings Code owing to the fact that under the law in effect publishers did not have to register websites in the register of daily newspapers and periodicals. Secondly, he also claimed that the regulations that impose such an obligation are too unclear to be a source of criminal liability according to the principle nulla poena sine lege certa et stricta (no punishment unless there is certain and strict law). Leszek Szymczak also appealed to change the sentence by acquitting the defendant from the offence provided in article 49a of the PLA owing to the fact that the defendant did not know about the illegal nature of the information (posts were uploaded/written by internauts) that the prosecution drew upon in the offence description. Because of that, his argument continued, the defendant could not be criminally liable, that is under Article 14(1) of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments, and Article 14 of the Directive 2000/31/EC6. Leszek Szymczak also appealed to completely overrule the abovementioned sentence and send the case back to the court of first instance for reconsideration.

The prosecution appealed against the judgment on the grounds of a mistake in factual findings that formed the basis for the judgment. It argued that the court was wrong to assess the social harm of the offence described in article 45 of the APL as minor (publishing an internet daily newspaper gby.pl without proper registration) and to discontinue proceedings with respect to this charge. Still further, a correct analysis of the subjective and objective features of the offence, particularly the legal interests undermined by the offence and the conduct of the defendant, all lead to other conclusions, the prosecution reasoned. The prosecution also maintained that the court made another mistake in the factual findings forming the basis for the decision. The court allegedly was wrong to assess the social harm of the offence described in article 49a of the APL as minor (unintentional publishing of press material with criminal content) and to discontinue proceedings with respect to this charge. A correct analysis of both subjective and objective features of the offence, including legal interests undermined by the offence and negative consequences experienced by the aggrieved party, especially in the party’s life and professional situation, the gravity and manner of the violation of obligations resting with the defendant, including the considerable time period of publication of the criminal content on the gazetabytowska.pl website and the conduct of the defendant after having acquainted himself with the content, all lead to the conclusion that social harm of the acts performed by the defendant cannot be described as minor, the reasoning continued.

The District Court in Słupsk asked the Prosecutor’s Office to delegate to the court the case of posts published on the website. The court observed that when the Prosecutor’s Office asked the administrator of the website to hand over information about the posts of possibly criminal nature, he indeed handed it over. Afterwards the Office discontinued the proceedings–having found no features of a prohibited act–but then pressed charges and indicted the editor.

The District Court in Słupsk in its judgment of 7 February 2008 case file VI Ka 409/07 held that managing an internet website necessitates registration. In consequence, running a website without registration violates the law. The court held that the reasoning of the Regional Court was correct and, similarly to the Regional Court, it discontinued the proceedings (at the same time ascertaining that the act had caused minor social harm). If it was not for that decision of the court, taking the face value of those sentences, anybody could be put on trial for running a website without registration. In this part the case ends with a discontinuance of the case for a year. The District Court in its decision on appeal made some controversial statements. In particular, the court decided that publishing information on the internet with the use of sound and image depends on the publisher, so any soundless publication still complies with the definition of a daily newspaper/a periodical. As concerns the second charge, the District Court overruled the former sentence and delegated the case for another hearing to the Regional Court. Following gby.pl, the court stated that a web portal, as a press title, needs to be registered: the District Court also suggested that

in a subsequent examination of the indictment, the Court should entertain upon sending case files back for pretrial proceedings due to its considerable shortcomings.

This might mean (the Regional Court still has to determine it) that the posted messages (posts) published on the forum might not have constituted an offence.

Discussion
If we go as far as to admit that in the light of the definition provided in Article 7(2) pt. 1 of the APL a website (such as gby.pl) is indeed “press”, considerable doubts still remain whether such a website is a “daily newspaper” or a “periodical”. Both definitions refer to the notion of “print” but also go further to encompass more media by providing that is might convey “sound or sound an image information”. Owing to the general lack of sound in internet websites, it is hard to deny that this regulation does not describe such a publishing medium. Article 7(2)(2) of the APL provides

1) press shall be defined as periodical publications that do not form a single and complete whole, are published at least once a year and bear a constant title or a name, a number and a date, in particular: daily newspapers and periodicals, news agencies bulletins, constant telex messages, bulletins, radio and television broadcasts, film chronicles; press shall also be understood as any and all existing and emerging in the course of technological advancement means of mass media, including broadcasting stations and television and radio broadcasting systems installed in facilities that distribute periodically publications via print, image, sound or any other broadcasting means; the press shall also encompass teams of people and individuals that deal with journalism,
2) a daily newspaper shall be a general-information periodical print or a sound or sound and vision message published more frequently than once a week,
3) a periodical shall be a periodical print published at least once a year but not more frequently than once a week; this regulation shall apply also to messages broadcast by means of sound or sound and vision and any other means than those described in section 2.

Similar Polish case law
Let us turn to Polish judicature concerning similar cases. The Appellate Court in Rzeszów ruled that an internet website cannot be recognised as a “daily newspaper” or a “periodical” as understood by the APL7. In another case, the Appellate Court in Warsaw recognised a teletext service not as a daily newspaper but as a text message as understood by article 4(9) of the Polish Act of 29 December 1992 on Broadcasting8 – LOB – (in Polish: Ustawa o radiofonii i telewizji), published in Journal of Law (Dziennik Ustaw) of 1993, No 7 item 34, consolidated text of 19 Novemver 2004, published in Journal of Laws (Dziennik Ustaw) No 253 item 2531, with subsequent amendments. The press law provides the definition of “press material”. Article 7(2)4 of the Act reads

press material shall be any informative, journalistic, documental or other text or image already published or provided to the publisher and intended for publication in press, irrespective of the means of transmission, type, form, destination or authorship of the material.

The decision of the Supreme Court the criminal Chamber of 28 September 20009 in the case of “traditional media” reads as follows

reader’s letters constitute press material as understood by Article 7 (2) 4 of the Act of 26 January 1984 on Press Law (Dz. U. 1984 No. 5 pt. 24 as amended) under the condition that the letters have been sent to the editorial office with the intention to be published. The editor-in-chief is responsible for their publication. A reader’s letter can be, therefore, published after the information contained in the letter has been cautiously and diligently verified as provided for by article 12 (1) of the Press Law. Publishing a reader’s letter does not constitute quotation of another individual’s statement. In view of that the editor-in-chief is still responsible for its publication.

The Supreme Court’s (Customs Chamber’s) decision of December 7, 199310 reads as follows:

Article 24 (1) together with article 23 of the Criminal Code and article 37 of the Press Law of 26 January 2984 provide the basis for a non-property claim of the violation of personal interests in a press material. The claim may be filed against a publisher.

The authors also need to mention that the Republic of Poland is a civil law country and there are no binding precedents. Also, the Supreme Court’s resolution is only binding for the court that referred with a specific question but in practice Polish courts often apply rules that were interpreted by the Supreme Court.

Different European jurisdictions
The decision11 of the Appellate Court in Berlin (Landgericht) of May 31, 2007 is an apt example of a similar case in German jurisdiction. The case revolved around the responsibility of a moderator of a website for posts made by third persons and the theory of the so-called “impartial internaut”. The court held that a moderator of an online portal is burdened with no general obligation to review (oversee) posts uploaded by third parties. The case involved a dispute between the administrator of the meinprof.de portal, a website used to evaluate professors of colleges and universities, and one of the evaluated professors who was dubbed on meinprof.de a “psycho” and “the bottom one”. Even though the moderator, having received a notice, did remove the posts, the professor filed a complaint with the court. The court held, however, that in this case the posts boiled down merely to airing one’s opinion. The justification of the ruling reads as follows

Under the press law, any publisher Verbreiter can be seen as an offender (Prinz/Peters, Medienrecht, 1999, Rn, 35). The publisher is anybody who, as in this case, contributes to the distribution of a statement. (BGH NJW 1986, 2503 (2504)–Ostkontakte).

Any third parties that (having been viewed objectively) by their actions support (financially) illegal actions that infringe legally protected interests cannot be liable for the infringement in civil cases. The condition for actual liability as an offender is the default of the obligation of review and control. The specific circumstances of a given case should decide if and to what extent the control is or might be compulsory. The decision should also depend on the determination of the function and tasks of the person charged with infringement and that person’s responsibility. The defendant, being an administrator of a platform for exchanging views, did not infringe the obligation of such review/control. Individuals who administrate online portals do not have to control all their content. Owing to the immense amount of content, such control would be unfeasible12.

Even the condition that in the rules of the website the defendant did reserve the right to delete illegal posts does not lead, contrarily to the assertions of the plaintiff, to the recognition of a general obligation to control content. Content control is obligatory only when a person, the personal interests of whom have been violated, brings an accusation in the form of a written notice. The notice should contain a detailed description of the violated personal interests with respect to a specific part of the content. In such a case the administrator of a portal does not have to conduct extensive searches at high personal and technological expense. The administrator will only have to check if the post that the accusation concerns can be described (from the perspective of an objective internaut) as conforming with the law. The defendant, dissimilarly to the administrator of a portal in the case decided upon by the BGH that the plaintiff evoked, did not violate the obligation of control. The administrator of the portal, upon the reception of a message from the plaintiff that centred upon the slanderous post, immediately deleted the post from the forum13.

No crime where there are doubts
In the Polish law, the regulations of the Act on Providing Services by Electronic Means, for example Article 14(1), provide that

A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.

Chapter 3 of the PSEM, entitled “Exemption of responsibility of the service provider for providing E-services”, includes, as the title itself suggests, a number of other exemptions. The chapter concludes with a regulation in article 15 that reads

Any company that renders services described in article 12-14 shall not be required to verify the data described in article 12-14 that is transmitted, stored or made available by that company.

Having reviewed the above regulations, it seems there are two that actually collide with each other–one from the PL and the other from the PSEM. The modus operandi should be drawn entirely from provisions of the law. Having determined it, only now can we turn to the analysis of regulations such as, for example, article 25(4) of the APL, which reads

The editor-in-chief shall bear the responsibility for the content of the material prepared by the editorial team and the organizational and financial issues of the company within the frames set up in the articles of association or relevant regulations. The editor-in-chief is also responsible for safeguarding linguistic correctness of press materials and counteracting their vulgarization.

Another article of the APL, already mentioned above, article 54b (included in Chapter 8, “Proceedings in press cases”) reads

Provisions on legal responsibility and proceedings in press cases shall be applied to the infringement of law connected with the transmission of human thought via means designed to distribute information, irrespectively of the technology of transmission, especially nonperiodical publications and other print, vision and sound products, other that press.

All criminal cases should be decided on in the scope of the principle nullum crimen sine lege (no crime without a law). The aforementioned cases are indeed riddled with doubts. The authors can hardly adhere to the claim that this clause might mean legal liability for the lack of registration of press other than a “daily newspaper” or a “periodical”, also because of the fact that the regulation covers mass media other than the press. In the authors’ opinion, the gby.pl website can be recognised as “press” but is neither a “daily newspaper” nor a “periodical”.

The legal basis is Article 414 of the Criminal Proceedings Code.

1. After the court proceedings have been instigated, if circumstances precluding prosecution or information substantiating conditional discontinuance of the proceedings are recognized, the court may decide to discontinue the proceedings or discontinue the proceedings conditionally. However, if circumstances provided in article 17(1) 1 and 2 are recognized, the court may issue an acquitting judgement, unless the offender at the time of the offence was non compos mentis

and article 66 (with subsequent ones) of the Criminal Code

The court may conditionally discontinue penal proceedings if the guilt and social harm of the illegal act are nor considerable, circumstances of the act are doubtless and the attitude of the offender that has not been punished for an intentional crime, the offender’s personal conditions and former lifestyle substantiate the speculation that the offender will obey the rule of law and especially that will not commit another crime…

Conclusion
Since the gby.pl is neither a daily newspaper nor a periodical, by discontinuing the proceedings in the case the courts apparently did not recognise that “the act was not committed or there was a lack of information sufficiently substantiating the suspicion of its committal” or that “the act did not bear the features of an illegal act or the law provided that the offender did not commit a crime”.

The Polish Act on Providing Services by Electronic Means was to implement into the Polish legislation the European Parliament and Council Directive 2000/31 of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) and the European Parliament and Council Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)14. The way Poland incorporated those two Directives into a single domestic legal act stirred considerable criticism15.

Many individuals pointed out that the implementation of the Directives boiled down mainly to the literal translation of their content into Polish, which was then put into a single legal act. In consequence, the Act draws on inconsistent terminology, for instance in some of the regulations the Polish Act uses the term “an information recipient” and in others “a service recipient”. Another problematic issue is the fact that the Act refers to other regulations provided in other domestic legal acts (e.g. the Telecommunications Law Act of 21 July 200016). What is even more, the regulations of the Polish Act do not explicitly set out if a service provider is exempt from civil liability or also criminal liability resulting from rendering e-services. Even further, the European Council reminded Poland that it had implemented the Directive 2000/31 only partially17. As a result, Poland initiated another legislative process that aimed at full implementation of the Directive, especially with regard to the implementation of the “country of origin” rule and the rule of the freedom of providing e-services.

Apart from the imprecise PSEM and the 1984 Press Law Act, which is a legal act originating practically in another era18, the only legal act that directly refers to internet publications is the Access to Public Information Act of September 6, 2001. The Act introduced an “official teleinformation publishing system” in the form of a “unified webpage system” (article 8). The only Polish legal act that suggests how to create websites (for public institutions to comply with the obligation to publish public information) is the Minister’s of Interior and Administration Regulation of January 18, 2007 on the Public Information Bulletin (BIP). Under article 9(2) of the Regulation

Where a subject, referred to in article 4(1) and (2) of the Act, owns an internet website, the subject’s own BIP website shall be created as a part of the website by placing a link with the BIP logotype that shall give direct access to the subject’s BIP website.

Apart from the imprecise definition of the Public Information Bulletin, which functions on the basis of the aforementioned Access to Public Information Act, there can also be the socalled “own website” which, even though provided for in the Regulation, is not defined therein. In consequence, while creating websites, public administration bodies are bound by no other rules than those existing in the “outer world”. Having recognised that, the authors put forward a statement that since in Leszek Szymczak’s case the charges (publishing a periodical without a registration) were not dropped owing to the lack of features of a prohibited act, the same charges (publication of internet websites without proper registration) can be brought against the highest public institutions in Poland. The authors asked the Chief Police Officer on May 8, 2007 the following: do these “own” internet websites (of public institutions) exist legally? The answer was that the Polish police does not register their internet websites with a registration court.

In a democratic country observing the rule of law, the situation of a public institution, which under Article 7 of the Polish Constitution “functions on the basis and within the limits of the law”, differs from the situation of a subject functioning on the basis of economic freedom. Apart from publishing a BIP bulletin, Polish public institutions can also publish daily newspapers and periodicals (which is allowed under article 8 of the APIA)

The publisher can be a legal entity, a natural person or a different organizational entity, even if it is not a legal entity. In particular a publisher can be a public institution, a staterun company, a political organization, a labour union, a cooperative, a selfgovernment body and other social organization, a church or any other religious organization.

If this is the case, public administration institutions should also fulfil legal conditions on the publication of such a newspaper or a periodical. The current practice shows, nevertheless, that the public administration massively creates internet websites and does not register it with registration courts. The Chief Officer of the Police answered the authors19.

The Act of 28 January 1984, the Press Law, does not recognize internet websites as daily newspapers or periodicals.

The first President of the Supreme Court, Lech Gordocki, made a similar statement, later published in the press20.

I am not going to apply to the Regional Court for the registration of the website of the Supreme Court since the Act does not provide such an obligation.

Neither the President of the Republic of Poland, nor the Commissioner for Civil Rights Protection, the Prime Minister of Poland and none of the Polish ministries and state agencies registered their own websites, which functionally do not differ from news websites. Then, if a court held that an individual who published a periodical without proper registration brought minor social harm, the court could rule otherwise if the charged entities were the police, the Prosecutor’s Office, the Ombudsman or even the President, who apart from BIP bulletins all publish news websites without registering them with registration courts21.

As already mentioned, the only normative suggestion concerning internet websites in Poland comes in the form of executive regulations relating to the Access to Public Information Act. These regulations do not differentiate between “websites”, “portals”, “vortals”, etc. Generally we do not know what a “portal”, a “vortal” or a “blog” are. However, Polish courts pass judgments in which judges try wrongly to differentiate between those terms22. If there is no difference between publishing a periodical necessitating proper registration and publishing a blog, then perhaps we should also scrutinise the publishing activities of Marek Siwiec, a Vice-President of the European Parliament, who has been publishing his ruminations at http://mareksiwiec.blog.onet.pl also without registration with a registration court since 2007.

Recent press releases in Poland induced several individuals to apply to registration courts for the registration of blogs as daily newspapers and periodicals (as understood by the Polish Press Law). In some of those applications courts decided to enter names of the blogs to the Register of Daily Newspapers and Periodicals. This, however, under the Polish law, does not mean that in Poland you need to register a blog with a registration court. First of all, such an application should be filed before publishing has started, but that, again, makes it impossible for a court to decide if a given activity necessitates registration. Secondly, courts cannot deny registration if an individual or an organisation files for the registration of something that is neither a daily newspaper nor a periodical. Under article 21 of the APL

A registrar body shall deny the registration if:
[1] the application does not contain data that the Act describes (the daily newspaper’s or the periodical’s title, the seat of the publisher and the exact address of the editorial office, the particulars of the editor-in-chief, the particulars of the publisher, the frequency of publishing of the daily newspaper or the periodical) and

[2] if granting registration would constitute infringement of the right to the legal protection of an existing press title.

Owing to the above, Polish registration courts did enter the names of blogs provided by their applicants23.

In the case of Leszek Szymczak, the defence asked the Polish Commissioner for Civil Rights Protection to apply for a revocation of the sentence (it can be applied for only by the Commissioner and the Prosecutor General). By the end of June 2008 the defence also filed a constitutional complaint (see the website of the Helsinki Foundation for Human Rights24).

P.S.
The Regional Court in Słupsk in its judgment of 16 December 2008 acquitted Leszek Szymczak from charges of publishing press material featuring criminal content that publicly incited its readers to commit offences. See “Press law, case II K 367/08“.

Footnotes
1. Case file VI Ka 409/7.
2. Journal of Laws (Dziennik Ustaw) No.5, pos. 24, with subsequent changes.
3. Journal of Laws (Dziennik Ustaw) No.88, pos. 553, with subsequent changes.
4. On the basis of the decision of the Voivodeship Court in Slupsk Ns-Rej.Pr 8/91 of September 12, 1991.
5. Ustawa z dnia 18 lipca 2002 r. o świadczeniu usług droga elektroniczna, Journal of Laws (Dziennik Ustaw) of September 9, 2002, No.144, pos.1204, with subsequent amendments.
6. Directive 2000/31 of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) [2000] OJ L178/1-16.
7. Case file I ACa 277/05.
8. Case file I ACa 601/98. Broadcasting Act, Ustawa z dnia 29 grudnia 1992 r. o radiofonii i telewizji, Journal of Laws (Dziennik Ustaw) of 2004, No. 253 item 2531.
9. Case file V KKN 171/98.
10. Case file III CZP 160/93.
11. Az. 27 S 2/07.
12. Decision of December 7, 2006, Az. 10 W 106/06; BGH NJW 2004, 3102.
13. J. Kurek, Comment available at http://prawo.vagla.pl/node/7341#comment-4526 [Accessed November 10, 2008].
14. [2002] OJ L 201/37-47.
15. G. Raczka, Ochrona Uslugobiorcy uslug elektronicznych (Torun 2007), p. 63, W. Iszkowski, X. Konraski, “Elektroniczne uslugi”, Rzeczpospolita newspaper, March 4, 2003.
16. Journal of Laws (Dziennik Ustaw) of 2001, no.73, pos. 852, as amended.
17. Commission of the European Communities, First Report on the application of Directive 2000/31 of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), Brussels, November 21, 2003, COM(2003) 702 final, p. 19.
18. It is noteworthy that August 17, 1991 is a symbolic date recognised as the inception of the Polish internet, i.e. the first time when via an IP protocol the Physics Department of the Warsaw University sent data to the Computer Centre of the Copenhagen University.
19 Letter of June 19, 2007 regarding the answer of the spokesman of the Chief Officer of the Police concerning websites run by the police. See http:// prawo.vagla.pl/node/7329 [Accessed November 10, 2008].
20. In a Polish daily newspaper, Rzeczpospolita, on September 6, 2007.
21. See http://www.president.pl, http://www.kprm.gov.pl/english, http:// www.rpo.gov.pl/index.php?s=3 [Accessed November 10, 2008].
22. See Judgment the district court in Warsaw (IV Civil Division) of June 9, 2008, case file Act IV C 806/07.
23. See http://olgierd.bblog.pl/wpis,moj;nowy;organ;prasowy,7042.html [Accessed November 10, 2008].
24. See http://www.hfhrpol.waw.pl/precedens/pl/aktualnosci/sprawa-gazety-bytowskiej-w-tk.html [Accessed November 10, 2008].

This article was originally published under the title Polish Courts Say Websites Should Be Registered As Press in the Computer and Telecommunications Law Review, C.T.L.R. 2009, 15(1), 9-14.

Copyright law, case I ACr 590/95

September 12th, 2008, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 12 December 1995 case file I ACr 590/95, published in OSA 1997, No 3, item 16, at page 32, held that benefits are generally a part of the net profit achieved as a result of copyright infringement. Looking at this issue from the comparative perspective, it is worth mentioning, that the No Electronic Theft Act (Pub. L. No. 105-147, 111 Stat. 2678 (Dec. 16, 1997)) introduced changes into 17 U.S.C § 101. Definitions.

The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

According to the Polish Court, the benefits are also the savings on expenses for copyright fees, if the copyright infringement was based on the use of work without a proper remuneration. Interesting approaches in two different jurisdictions. I just need to remind you that the Republic of Poland is not a common law country.

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

Personal rights, case I ACa 385/2006

July 31st, 2008, Tomasz Rychlicki

Update on Februrary 27, 2010.
I reported on a final judgment in Justyna Steczkowska’s case in my post entitled “Personal rights, case I ACa 1176/09“.

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

The protection of personal image/publicity rights is provided in Article 23 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments. This provision outlines the personal image as one of the personal property/interests – an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image afforded by provisions of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), 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.

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

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

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

And, of course, from the European Convention on Human Rights of 4 November 1950.

Patent law, case I ACa 907/06

July 9th, 2008, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 13 February 2007 case file I ACa 907/06 held that in a situation of conflict of rights related to two patents being in force, the case should be decided by the civil court in order to examine the scope of patent claims, and not only in the case of infringement of the patent but also in the case that the patent infringement does not occur. The Court ruled that the provisions of Article 189 of the Polish 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, are deemed as lex speciali to the provisions of Article 284(1) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.

Copyright law, case VI ACa 1259/06

March 17th, 2008, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 17 October 2007 case file VI ACa 1259/06 held that the Polish Act of 16 February 2007 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 subsequent amendments, define an entrepreneur very broadly. According to the Court, this definition will even cover such entities whose activity is not associated with a typical business. Therefore, there was no reasons to deny such a status to the Polish Association od Writers and Composers (Stowarzyszenie Autorów – ZAiKS), a collecting society. This argument was confirmed by the Supreme Court in its judgment of 7 April 2004 case file III SK 22/04, published in OSNP 2005/3/46. The Court had no doubt that ZAiKS is active in providing professional services, in a structured and continuous manner, on its behalf, in the field of collective management of assigned copyrights, and thus it participates in business transactions. In applying the provisions of the APCC, “commercial purpose” as the last of the important parameters of economic activity means to obtain certain benefits for the operator of such activities. The use of such obtained benefits is, however, indifferent.

The European Court of Justice in its judgment of 27 March 1974 Case C-127/73 BRT v. SABAM published in ECR 1974, p. 313, ruled that the association of authors can be deemed as an entrepreneur, because an association whose object is to exploit and manage copyrights for gain “pursues a business activity consisting in the provision of services in respect of composers, authors, and publishers”.

It was undisputed that ZAiKS grants licenses for fee, and it also collects appropriate fees for the management of assigned rights. Therefore it has a measurable financial benefits from its activities. The fact that these benefits are fully allocated to the statutory objectives does not mean, in light of the abovementioned comments that ZAiKS work has nothing to do with the commercial objectives. The Court ruled that the Society of Authors ZAiKS being a non-profit organizations, is also a legal person providing services to the public, because it is organizing public access to creative activity, and licenses the use of this creativity. Therefore, ZAiKS is an entrepreneur as defined in the APCC.

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