The Polish Social Insurance Institution (SII) deprived a person of the right to a social pension/insurance. According to the SII, this person did not meet the statutory requirements for receiving benefits because she could not be deemed as a person completely unable to work. As the evidence, the SII inter alia pointed to the activity of that person on Facebook. The case was appealled. The District Court in Siedlce in its judgment case fie IV U 555/17 overturned the decision of the SII. The Court ruled that activities of the insured on Facebook cannot support arguments that she is able to use a computer and applications associated with it by herself. In addition, there was no direct relationship between knowledge of how the Internet works and her ability to perform work.
Archive for: Polish District Court
Social insurance, case IV U 555/17
February 14th, 2018, Tomasz RychlickiCopyright law, case I C 471/16
April 22nd, 2016, Tomasz RychlickiNiezależny Samorządny Związek Zawodowy “SOLIDARNOŚĆ” (Independent Self-governing Trade Union “Solidarity”), the owner of the figurative European Union trade mark EUTM no. 014026454, sued Czesław Mozil, a Polish singer known also as Czesław Śpiewa (Czesław sings), for the infringement of copyrights and personal interests. Mr. Mozil has recorded and published a song and a TV clip entitled “Nienawidze Cię Polsko” (I hate you Poland) in which the well-known and iconic “SOLIDARNOŚĆ” logotype was also presented. NSZZ “SOLIDARNOŚĆ” demanded 500.000 PLN of compensation.
The District Court in Kraków in its judgment of 8 April 2016 case file I C 471/16 dismissed the case. The Court held that the logo was used in the video as a symbol of Poland and as a Polish identity, and not as a logotype that identifies a trade union, so there was no infringement of personal rights. Any attempts to limit forms of artistic expression would violate the constitutional principle of freedom of artistic expression. The judgment is not final.
Personal interest, case I ACa 544/15
March 17th, 2016, Tomasz RychlickiThe Appeallate Court in Warsaw in its judgment of 12 January 2016 case file I ACa 544/15 decided a case of a person who offers legal assistance to entities who have received the payment order, and also writes articles and tips describing among other things, business debt collection companies and their activities. These articles were published online. The plaintiff in this case, one of such companies, felt that content of defendant’s posts infringed its personal interest – the company name. The defendant was found liable in first instance, however, the judgment was overturned on an appeal. The Court held that the District Court did not perform comprehensive assessment of the evidence.
The Appeallate Court did not agree that printouts from a website could serves as a private document according to the provisions of Article 245 of the Civil Proceedings Code – CPC – (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments. A private document is proof that the person who signed it, made a statement contained in the document. This means that inherent feature of this type of evidence is the signature. The evidence provided by the plaintiff did not contain a signature. The CPC does not provide an exhaustive list of what can be deemed as evidence in civil proceedings. As evidence can serve documents (official and private), testimonies of witnesses, expert opinions, inspection, hearing the parties. Moreover, based on the provisions of Article 308 § 1 of the CPCP, the Court may also admit movies, television series, photocopies, photographs, plans, drawings and CDs or audio tapes and other devices that store images or sounds, as evidence. The Court ruled that prints from websites are not a private document within the meaning of Article 244 and 245 of the CPC. However, such prints may be considered as “another type of evidence” within the meaning of Article 309 of the CPC, as the CPC does not provide an exhaustive list of evidence, and it is acceptable to use any source of information about the facts relevant to the outcome of the case, and as evidence may serve any legally obtained media or information of the facts. See “Procedural law, case I CSK 138/08“. Plaintiff’s claims and submitted evidence suggested that the claimant saw defendant’s posts on a web site and later saved it in its own web browser. In this way the Company has presented to the court only copies of files that were posted on a website, and not, as erroneously the District Court stated, printouts from the website maintained by the defendant. The Court pointed out that there are plenty of ways to modify the content of a website. The Appeallate Court decided that the plaintiff has submitted evidence of low credibility, since they did not provide information that their content was corresponding to was actually visible on the screen while a website with defamatory content was accessed. The Court found that it was also not known when the plaintiff has saved the content of a website, as the date of saving process was not indicated, and as the date the violation of personal rights was also not mentioned.
Personal interest, case I ACa 142/15
February 17th, 2016, Tomasz RychlickiThe Appeallate Court in Warsaw in its judgment of 16 December 2015 case file I ACa 142/15 decided a case of a Polish rockman who sued a tabloid newspaper for publishing online article that infringed his personal interests. The Court found the journalist and author of the article liable and ordered him to publish apology and to pay proper compensation. However, the Court dismissed the claim that would order the publisher to remove the article from newspaper’s website. The Court ruled that the role of the judicial authorities is not to participate in the falsification of history by ordering the removal from the public sphere of all traces of publications recognized in the past by the final judicial decisions as unjustifiable attack on the good name of individuals. Accordingly, a proportional and adequate form of protection for the plaintiff would by be amending online defamatory publications with a relevant footnote, comment or link to information about the outcome of the proceedings.
Personal interest, case XXIV C 607/13
March 30th, 2015, Tomasz RychlickiMaciej Strzembosz is a Polish film producer, screenwriter, director and the President of the Polish Audiovisual Producers Chamber of Commerce. In his statements regarding Polish copyright law ammendments, free culture, market regulatory Mr. Strzembosz used very personal arguments against Igor Ostrowski, who is a renown lawyer and the co-founder of The Projekt: Polska Association and Centrum Cyfrowe, and Alek Tarkowski, a sociologist and the coordinator of the Polish branch of Creative Commons. Mr. Ostrowski and Tarkowski both being tired of arguments such as “Ostrowski’ Google’s agent” or “Tarkowski ideologist of thievery on the Net” decided to file a civil suit against Mr Strzembosz claiming infringement of personal interest.
The District Court in Warsaw logged this proceedings under case file XXIV C 607/13, however it has never reached a judgment since the parties decided not to continue their legal dispute before the Court.
Unfair competition law, case VI ACa 1478/13
March 26th, 2015, Tomasz RychlickiTwo Polish companies were involved in dispute regarding invalidation of a patent right. During the proceedings before the Polish Patent Office, one of the parties provided evidence that included internal documents and secret materials of the other party. The company filed a civil court action claiming unfair competition delict/tort.
The Appeallate Court in Warsaw in its judgment of 13 May 2014 case file VI ACa 1478/13 ruled that patent invalidation proceedings, like any other litigation between entrepreneurs – even if it is connected with the economic activity of such entities, cannot be regarded as performing or conducting economic/business activities. This results in a lack of responsibility of the party of the proceedings before the Patent Office in respect of an act of unfair competition, even if in the course of that proceedings such party conducted activities that would normally be deemed as acts of unfair competition.
Personal interests, case I C 988/13
September 26th, 2014, Tomasz RychlickiThe District Court in Wrocław in its judgment of 27 March 2014 case file I C 988/13 ruled that the provisions Article 15 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, exempts ISPs from the preventive moderation (approval) of comments posted by website and forum users.
The entity, which provides services specified in art. 12 – 14, shall not be obliged to monitor the data referred to in art. 12 – 14, which are transmitted, stored or made available by that entity.
The Court ruled that the lack of implementation of a control and content filtering system for profanity comments cannot prejudge the responsibility of the defendant, because preventive censorship would lead to infringement of the right to freedom of expression. The decision on the scope and priority of protected and conflicting rights, while accepting the obligation to adopt preventive control of information posted on a website and bonding the liability of the provider with the lack of such system, would constitute an excessive interference in the need of protection for different rights and interests, while simultaneously threatening freedom of expression.
Personal interest, case I CSK 542/13
September 17th, 2014, Tomasz RychlickiLeszek Czarnecki and his wife Jolanta Pieńkowska sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Czarnecki claimed that articles posted on this website infringed his personal interests by publishing information about social status and a new home, which was built on a grand scale.
The District Court in Warsaw in its judgment of 24 October 2011 case file IV C 1639/10 found the publisher guilty. The court held that the content of articles undermined the prestige of the spouses as they are people commonly known, reputable and rich. The Court ruled that the amount of compensation is up to 200.000 PLN, because, as the judge assessed the higher the prestige of imputed persons is, the higher should be the economic sanction.
Grupa o2 appealed. The Appeallate Court in Warsaw in its judgment case file VI ACa 73/12 ordered owners of both sites to issue an apology but reduced the amount awarded, and ruled that the company has to pay 20.000 PLN for social purpose. Both parties filed cassation complaints.
The Supreme Court in its judgment of 12 September 2014 case file I CSK 542/13 repealed the contested judgment and returned the case for further reconsideration. The reasons were based on procedural grounds. It turned out that the Appeallate court has assessed the evidence, but it did not find its own conclusions. The Court also did not rule on the relationship between comments posted by Internet users and the provisions of Polish Act on Providing Services by Electronic Means that exclude the liability of the ISPs.
Copyright law, case I ACa 1663/13
August 19th, 2014, Tomasz RychlickiDuring a political campaign in 2011, Dariusz Dolczewski posted a movie clip on his profile on Facebook in which he used images of young politicians from other party. This clip had a background music taken from a rap song “Suczki” (Bitches) that was recorded by Dominik Grabowski, known as Doniu. Grabowski sued.
The District Court for Warszawa-Praga in its judgment of 12 July 2013 case file I C 504/12 held that there was copyright infringement and ordered Dolczewski to pay 17.500 PLN compensation. More importantly, the Court ruled that posting a link on Facebook can be also deemed as infringement of copyrighted works. Both parties appealed.
The Appeallate Court in Warsaw in its judgment of 7 May 2014 case file I ACa 1663/13 repealed the contested judgment and held that the politician is not liable for copyright infringement, because since the defendant was not the author of this audiovisual work (the clip), therefore he could not be found guilty for posting a link to such work. The Court also presented a very original conclusions apropos tangible and digital copy of the work. This issue arose in the discussion regarding the provision 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 Court ruled that recording of a work is undoubtedly the moment when one may accept the existence of a song. Traditionally, recording always, according to the provisions of ARNR, was related to the existence of material copy of the work. In the opinion of the Court of Appeal, the so-called “tangible copy theory” must be applied to digital world. First of all, one must realize the essence of digital recording, which forms the basis of operation and content availability on the Internet. The Court noted that the difference between conventional tangible copy and a digital copy is the fact that the data stored digitally may be removed, but such data/information also have physical location on the media, can also be duplicated, but always and at any time on a material substrate in the form of a computer memory, or a recording unit, regardless of how information is stored. Only such solution allows for the use of information. Therefore, the possibility to play a song, whether on a computer or on another device determines the existence of a copy of the work in a tangible form.
See also “Polish regulations on copyright” and “Polish case law on copyright“.
Personal interest, case I ACa 841/2013
January 9th, 2014, Tomasz RychlickiThe “Nigdy Więcej” (Never Again) Association and the “Zielone Światło” (Green Light) Foundation organized a social action entitled “Nazism never again on Allegro”. It was a protest against a Polish auction website Allegro.pl which allowed to buy and sell different Nazi gadgets and memorabilia. The Foundation together with a writer, artist and social activist Jerzy Masłowski prepared an illustration with Allegro.pl logotype in which in which two L letters were changed and shaped as the SS symbol. This illustration was used on postcards that were handed out to different people during the street-action that happened near Metro Świętokrzyska in Warsaw on 21 March 2010.
On 20 April 2010, the Foundation received a cease and desist letter from QXL Poland – the owner of Allegro. The Company requested the removal from all public places of all publications, photographs, posters and billboards, and other materials that included the altered trade mark. QXL demanded destruction of all the above mentioned materials and asked the Foundation to publish an apology on its website, as well as in the pages of Gazeta Wyborcza newspaper. The Foundation refused to comply.
QXL Poland sued the “Zielone Światło” foundation and Jerzy Masłowski for the infringement of personal rights. During the trial, the Foundation argued that it has conducted correspondence with Allego with regard to products with fascist symbols or products referring to fascist ideology, that were offered at different auctions. However, it has not brought the intended effect, because Allegro.pl did not remove these items from its website. For this reason, the Foundation organized the street action. The Foundation argued that from 8 June 2010, the provisions of Article 256 of the Criminal Code were amended.
Art. 256.
§ 1. Whoever publicly promotes a fascist or other totalitarian system of state or incites hatred based on national, ethnic, race or religious differences or for reason of lack of any religious denomination
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.§ 22 The same punishment shall be imposed on anyone, who for the purpose of dissemination, produces, records or import, acquire, stores, possess, presents, transports or transfers a print, record or other item of the content specified in § 1 or being a carrier of the fascist, communist or other totalitarian symbolism..
§ 3 A crime is not committed by a perpetrator of a forbidden act specified in § 2, if he or she commits the said act in the course of artistic, educational, collectible or scientific activity.
The Foundation concluded that its action was a response to long-term omission of Allegro. The action was organized to draw the attention of relevant authorities and the public at auctions that poses a danger to others. It sought to protect an important public interest, and therefore was not unlawful. In addition, the Foundation argued that according to the legal doctrine the criticism aimed at improving the reality is not illegal, even if it is excessively expressive in description and in negative assessment, as well as it’s impolite way of expression and presentation of arguments, if it is justified by the importance of issues raised and the literary form that was used. Moreover, the scope of permissible criticism depends on the weight of social affairs, and in case of doubt, freedom of expression takes precedence, and in some cases even offensive criticism is acceptable. If the case requires so, the criticism might be very offensive, and it may even seek to destroy the enemy, for example, in the dispute against pedophilia or against the view that is glorifying Stalin. The Foundation argued also that a request for legal protection raised by Allegro cannot ban the Foundation and other individuals from expressing their critical opinions of the plaintiff’s conduct. Such behavior constitutes an abuse of the subjective right as decided by the Appeallate Court in Lódź in its judgment of 25 May 2006 case file I ACa 15/06, published in electronic database LEX, under the no. 512493.
On 9 November 20011, a lawyer representing the Foundation presented a legal opinion issued by Prof. Wojciech Sadurski. Prof. Sadurski wrote that there was no violation of personal interests. In the opinion of the author, the case brought by QXL Poland illustrates the conflict between two types of claims related to absolute rights protected by the law. The claims relating to freedom of expression, and intellectual property claims relating to the protection of trade marks owned by QXL Poland. Citing the case law of the Polish Constitutional Tribunal, prof. Sadurski argued that freedom of speech is superior to other constitutional rights and freedoms. He noted that limiting the right to freedom of expression by issuing a ban on speech, would violate the essence of the constitutional right to freedom of speech. Prof. Sadurski cited Smith v Wal-Mart Stores, 537 F.Supp.2d 1302 (ND GA 2008), however he pointed out that the Foundation does not conduct any commercial activity, and the risk of consumers’ confusions is clearly excluded. Please bear in mind that such opinions are treated by the Courts as private documents, not as the expert witness evidence/testimony. The case is pending and the next hearing is scheduled on 6 February 2012.
QXL Poland filed also a request for preliminary injunction. The District Court in Warsaw in its order of 20 January 2011 case file XXIV C 1035/10 dismissed it during a closed-door court session (in camera). However, the Appeallate Court in Warsaw in its decision of 5 May 2011 case file I ACz 671/11 decided to secure the claim of QXL. The Court prohibited the Foundation and Jerzy Masłowski from transmitting and disseminating on their websites of any publications or materials containing the questioned trade mark.
The District Court in Warsaw in its judgment of 13 March 2013 case file XXIV C 1035/10 ruled that the “Zielone Światło” (Green Light) Foundation infringed personal rights of Allegro, such as reputation and fame. The Court decided that the demonstrations against the sale of Nazi memorabilia and interference with the logo of the portal were too excessive and bore the risk of linking the portal with Nazi organizations.
The Appeallate Court in Warsaw in its judgment of 9 January 2014 case file I ACa 841/2013 dismissed Allegro’s claims. The Court noted that in this case there was a conflict of values, but also drew attention to the historical context of the sale of items referring to the Nazi ideology. The court held that undoubtedly there has been violation of the good name of the plaintiff – the name of the portal website, and in consequence, it could interfere with its business because some customers would not have positive opinions regarding the auction site. However, the rough means of expression that were undertaken by the Defendants, in order to remove the sale of a Nazi gadgets, excluded illegality. According to the Court this actions proved to be effective – have led to restrictions on the sale of Nazi’s memorabilia . What’s more important, the Court held that the Defendants acted to protect a legitimate public interest. The court ruled that artistic criticism of such business activities of an auction portal is not an unlawful action and deserves constitutional protection. The judgment is final.
Trade mark law, case XVI GCo 204/13
September 30th, 2013, Tomasz RychlickiOn Augut 2013, Polish telecom Polkomtel sp. z o.o. started an advertising campaign of its mobile Internet access services. In a short movie, a girl named Basia is starting new life by dumping her boyfriend and moving to a new flat with an Internet access based on LTE technology. She mentions that her boyfriend had Internet access provided by Telekomunikacja Polska S.A. under the brand name Neostrada. She is very happy about the changes. The ad ends with the statement that Internet provided by Plus (brand name of Polkomtel) is faster from Neostrada. This comparison is based on the ranking provided by SpeedTest.pl of July 2013.
On 9 September 2013, Telekomunikacja Polska requested the District Court in Warsaw to issue a preliminary injuntion against Polkomtel, in order to prohibit acts of unfair competition and trade mark infringement of the word trade mark NEOSTRADA R-182762. Telekomunikacja noted that Polkomtel is one its major competitors on the Polish telecommunication market. The Company argued that Polkomtel infringed its trade mark rights by taking unfair advantage of reputation and distinctive character of the NEOSTRADA brand, and the advertising movie was comparative advertising contrary to good practices, and as such, should be deemed as unfair competition.
The District Court in Warsaw in its order of 23 September 2013 case file XVI GCo 204/13 dismissed the request. The Court held that premises to secure the claims are based on substantiation of claims, i.e. on providing prima facie evidence of the infringement and legitimate interest in granting the order. According to the Court, Telekomunikacja did not provide evidence on reputation of its trade mark and Polkomtel did not infringe the right of protection for NEOSTRADA, because this sign was only used to specify the service to which it relates. The word was used as a name for a given service, not as a trade mark. The Court noted that advertising that allows to identify, directly or indirectly, the competitor or products or services offered by the competitor, described as “comparative advertising”, should be deemed the act of unfair competition if it is contrary to good practices. However, the short movie clip published by Polkomtel is not in any way contrary to such practices, because it is not misleading and it does not affect market decisions as to the purchase of goods or services. The Court agreed with the decision of the President of the Office of Competition and Consumer Protection of 6 August 2009 case no. DDK 4/2009, according to which, advertising is deemed as misleading when a consumer gets false idea of the goods or services, and misleading information influence the decision to purchase these products.
See also “Trade mark law, case XXII GWo 68/12“.
Trade mark law, case I ACa 1268/12
July 4th, 2013, Tomasz RychlickiWytwórcza Spółdzielnia Pracy SPOŁEM (WSP SPOŁEM) from Kielce (the capital city of the Świętokrzyskie Voivodeship) sued ROLESKI Sp. J. for the infringement of word and figurative trade marks R-197616, R-170401, R-123588 and R-193780 and unfair competition torts/delicts. Both Polish companies produce different mayonnaise products that are sold in jars of a similar capacity. WSM Społem is a manufacturer of “Majonez KIELECKI”. In 2008, ROLESKI produced mayonnaise in a package bearing the designation “Świętokrzyski”. The label of this package was modified twice, by removing the word “Świętokrzyski” and by replacing it, during courts’ proceedings, by the word “Regionalny”. WSP SPOŁEM asked the District Court in Kraków to secure the claims and to issue preliminary injunction in order to prohibit ROLESKI, until the final decision is rendered, the sale of mayonnaise in a jar with a label containing a yellow background, a centered white box in the shape of an ellipse with a green border, and a green jar lid, and a round yellow sticker connected with jar’s side, and to seize and retain, until the final decision is issued, of all products held by the defendant in the form of mayonnaise packages with labels containing centered yellow background, a centered white or yellow field in a shape similar to an ellipse, framed or underlined by a green or red line, with a green round jar lids and a yellow label (band) connected to jar’s side, and also containing any of the elements described above.
ROLESKI requested the Court to dismiss the suit. The Company argued that it does not counterfeit products of WSP SPOŁEM as it manufactures own products bearing reputable trade mark, which in consequence, eliminates not only identity, but also the similarity of products. ROLESKI noted that if the two parties compete under their own brands, there is no harm to the reputation and distinctive character of their trade marks. According to ROLESKI, WSM Społem mistaken reputation of the registered trade mark with the concept of the reputation of a product. As a result, it does not prove the reputation of the figurative mark R-197616, but generally a particular product “Majonez KIELECKI”. WSM by designating its product with a word “Majonez KIELECKI” indicates only its generic name and determine the place of origin, and therefore such trade mark is devoid of any distinctive character, as opposed to the trade mark used by ROLESKI, that is a distinctive sign.
The District Court in Kraków in its judgment of 23 May 2012 case file IX GC 86/10 found that graphics of mayonnaise packages produced and marketed by ROLESKI were modeled on the graphics of mayonnaise package produced and marketed by WSP SPOŁEM. The Court noted that similarities outweighed the differences. The Court made findings of facts on the basis of documents submitted by the parties, as well as the testimony of witnesses and the opinion of an expert witness, except for the part where the expert speaks about the intentions of the designer’s of ROLESKI’s trade marks. The Court asked the expert on the likeness of packages containing the elements of trade marks and the impact of possible similarity on the likelihood of consumer confusion. ROLESKI filed an appeal complaint. The Court also found that ROLESKI used the word “Świętokrzyski”, but the office of the company was located in another voivodeship (Małopolska Voivodeship, in the Tarnów community), which was deemed as an act of unfair competition.
The Appeallate Court in Kraków in its judgment of 15 January 2013 case file I ACa 1268/12 dismissed it and ruled that the District Court has made the appropriate findings. The Court noted that the evidence and testimony of expert witness allowed for a clear and comprehensive answer to the question of similarity of the goods, understood as a whole, including packaging, manufactured and marketed by the parties, taking into account changes made by ROLESKI in the appearance of mayonnaise packaging produced by the Company from Tarnów. The Court confirmed that by the use of the word “Świętokrzyski” together other elements similar to those attributed to WSM Społem, ROLESKI has exploited a set of associations created by WSM Społem for the product, which is mayonnaise with a specific package. The use of the additional word “Świętokrzyski” perpetuated these associations and allowed the Court to treat ROLESKI’s action as an act of unfair competition. ROLESKI appealed directly to the reputation of the product of WSM Społem by invoking the name of the capital of Świętokrzyskie region. The Court acknowledged similarity of the vast of words and figurative elements of packaging. All the elements visible on the packaging of both parties, although they include other wordings by the use of the same color and compositional arrangement lead to customer confusion as to the origin of the goods, and it also constitutes an act of unfair competition.
Trade mark law, case I ACa 1402/12
June 28th, 2013, Tomasz RychlickiThe Polish company SOBIK, a producer of butter, sued Okręgowa Spółdzielnia Mleczarska in Radomsk (OSM) for trade mark infringement of the word-figurative trade mark NATURALNY PRODUKT POLSKI, MASŁO EXSTRA OSEŁKA GÓRSKA z ekologicznie czystych terenów R-165550 and the word-figurative trade mark Naturalny polski produkt z ekologicznie czystych terenów MASŁO EKSTRA OSEŁKA GÓRSKA Naturalny polski produkt z ekologicznie czystych terenów SOBIK DOBRE BO POLSKIE Wyróżnione nagrodą konsumenta LAUR KONSUMENTA 2005 Wyróżnione Srebrnym Laurem Konsumenta R-203677 and three other trade marks.
SOBIK argued that OSM in Radoms used similar product packages for butter, in particular these with words “Masło Extra” (extra butter) and “Osełka” (butter pat) written in red font on white or creamy background, and with a layout of words and figurative elements that were similar to these used in the registered trade marks.
The District Court in Łódź in its judgment of 30 August 2012 case file X GC 391/10 held that SOBIK failed to show the existence of three products on the market and the competitive behavior of the defendant in respect of infringements of trade marks R-200466, R-200467 and R-195683. However, the Court found the infringement of other two signs and ruled that consumers examine packaging of products, such as butter, from a distance. The Court noted that everyday-use products (FMCG) are displayed in stores next to each other, which may lead to likelihood of confusion, because consumers do not attach so much attention in their selection. The Court also found that OSM was involved in acts of unfair competition by imitating products of SOBIK. OSM filed an appeal complaint.
The Appeallate Court in Łódź in its judgment of 29 April 2013 case file I ACa 1402/12 dismissed it and ruled that OSM was not prohibited from the use of words such as “Masło Extra” or “Osełka”, but the company cannot use similar graphic design for these words on its products that could lead to consumers’ confusion.
Criminal law, case II K 1331/10
March 20th, 2013, Tomasz RychlickiOdsiebie.com was a hosting website operated by couple of administrators that were charged by the Prosecutor for fencing of computer programs and aiding in their disposal. The owners were detained for 24 hours and the domain name was locked. The Prosecutor Office was informed about alleged criminal activity by the employees and lawyers representing ZPAV i FOTA – two big Collecting Societies in Poland.
The Regional Court for Wrocław Śródmieście, II Wydział Karny in its judgment of 6 March 2012 case file II K 1331/10 acquitted administrators of all charges. The appeal filed by the Prosecutor Office was dismissed by the District Court in Wrocław in its judgment of 6 February 2013.
Trade mark law, case I ACz 1156/12
December 31st, 2012, Tomasz RychlickiThe Polish entrepreneur Przedszkola Pomarańczowa Ciuchcia A. Sławek sp. jawna from Warszawa, the owner of the word-figurative trade mark pomarańczowa ciuchcia przedszkola R-247390 (orange choo-choo kindergartens), sued another entrepreneur seated in Mińsk Mazowiecki who runs kindergarten as its business activity under the name “Wesoła ciuchacia” (Jolly choo-choo).
The District Court in Siedlce did not grant a preliminary injunction. The Court ruled that the plaintiff owns trade marks that only include the word “ciuchcia”, and the ban would block the use of such word for any other business, which would hamper the proper functioning of the market and could lead to the monopolization of this word by one company.
The Appeallate Court in Lublin in its judgment case file I ACz 1156/12 dismissed the complaint filed by A. Sławek. The Court held that the company cannot extend the right of protection for the word mark “orange choo-choo” on the mere word “choo-choo” in order to prevent others to use it in their company names. The right of protection include a sufficiently distinguishable words “orange choo-choo” and the word “choo-choo” itself, according to the Court, is not distinctive. Although these rights are in force throughout the whole territory of the Republic of Poland, but the risk of misleading recipients of kindergarten services is limited because both entrepreneurs are operating in very different areas – Warsaw and Mińsk Mazowiecki. The risk of confusion between the name “orange choo-choo” and “jolly choo-choo” is also minimized by establishing the entity that is responsible for running kindergartens, the scope of education and educational services, human resources services and the method of financing.
Criminal law, case III K 56/12
September 14th, 2012, Tomasz RychlickiRobert Frycz created a website that was available under anytkomor.pl domain. The domain name and the content referred to the activities of the Polish president Bronisław Komorowski. It hosted a game entitled “Komor Killer” in which the player was able to throw feces in the animated figure of the President Komorowski.
The Prosecutor Office from Tomaszów Mazowiecki pressed charges against Mr Frycz based on the provisions of Article 135 § 2 of the Polish Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.
Article 135. § 1. Whoever commits an active assault on the President of the Republic of Poland
shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.
§ 2. Whoever insults the President of the Republic of Poland in public
shall be subject to the penalty of the deprivation of liberty for up to 3 years.
The judge decided to conceal the hearing due to breach of good manners and important private interests of the Polish President. The District Court in Piotrków Trybunalski in its judgment of 14 September 2012 case file III K 56/12 found Mr Frycz guilty and sentenced him for the penalty of one year and three months of of the restriction of liberty with the obligation to perform 40 hours of community service per month.
Personal interests, case I C 116/12
August 9th, 2012, Tomasz RychlickiEryk Schuman wrote an article regarding Klaudiusz Sevkovic who is an alderman of Chorzów city and also the president of the local handball club. This critical piece appeared at dlachorzowa.pl website. According Mr Schuman, the data given in the declaration of interests of the alderman, could indicate that Mr Sevkovic uses the communal property in his private economic activities. Sevkovic filed a suit for the protection of his personal interests. He argued that the article overstated the amount of cash taken from the club. Mr Schuman wrote that the alderman took 275 thousand PLN (Schuman used the abbreviation “tys.” which stands for thousand in Polish) for a contract work. The journalist referred to a statement of financial interests filed by Sevkovic. However, the amount disclosed in the statement was 275 PLN not 275 tys. PLN. Schuman argued that it was an unintentional mistake in the text, and it was corrected immediately after he noticed it. He noted that the goal of the article was to draw attention to irregularities of the activities of alderman. Meanwhile, Sevkovic argued that such false information was visible on at least for two weeks and it was removed only after sending a letter to the editor to request a correction, and to publish an apology, which, however, never appeared on the website.
The District Court in Katowice in its judgment of 6 August 2012 case file I C 116/12 ruled that Eryk Schuman infringed Mr Sevkovic’s personal interest. The Court noted that the article served to undermine the credibility and good name of Sevkovic in the public opinion. The Court did not consider the text in question as a “typographical error”.
Personal interests, case I ACa 689/13
August 1st, 2012, Tomasz RychlickiFS File Solutions Ltd. is the owner of a popular hosting website chomikuj.pl that allows for hosting different files by using a simple web interface. The Polish Chamber of Books (PCB) is Poland’s publishing industry trade body that found many of its titles available on chomikuj.pl without the permission of copyright holders. The PCB issued negative press and TV statements regarding chomiku.pl policy and business model. The Company sued the PCB for the infringement of its personal interests. FS claimed that by calling it “pirate service” the PCB infringed on its the company name (firm).
The District Court in Warszawa I Civil Chamber in its judgment of 20 February 2013 case file I C 407/12 ruled that PCB did not infringed personal interests of FS. File Solutions filed an appeal.
The Appeallate Court in Warsaw in its judgment of 10 October 2013 case file I ACa 689/13 returned the case to the District Court.
Personal interest, case II C 626/11
April 27th, 2012, Tomasz RychlickiIn 2007, for about 6 months, the Polish Central Anti-corruption Bureau collected telecommunications data, including billings and location data from Base Transceiver Stations, of a Polish journalist Bogdan Wróblewski. Mr Wróblewski sued the Polish State Treasury which according to the Polish law represents the Polish state in certain legal aspects..
The District Court in Warsaw in its judgment of 26 April 2012 case file II C 626/11 has confirmed that the Central Anti-corruption Bureau violated personal interests of a journalist by collecting his telecommunications data. The Court pointed out that privacy is a fundamental human right and its breach must be justified and proportionate. The permission is limited “objectively” to offenses of corruption and “qualitatively” – its condition should be determined by the fact that there are not available less invasive means of control which could be useful. The process of receiving of telecommunications data must take into account these limitations each time it is initiated.
Personal interest, case III C 202/09
March 12th, 2012, Tomasz RychlickiArnold Buzdygan sued Agora S.A. the owner and publisher of kobieta.gazeta.pl website, claiming that the company infringed his personal interest by publishing an online article entitled “Trolls – Internet’s vexatious personas” in which his name was mentioned. The District Court in Warsaw in its judgment of 12 December 2011 case file III C 202/09 dismissed the complaint and ruled that the criteria of the infringement of personal interests should be based on objective rather than subjective circumstances that usually arise from the feelings of the person concerned. The objective response of public opinion is more important in such case. The Court noted that Mr Buzdygan is a public person whose opinions and statements were subject to criticism by other users. Such negative comments were directed to his activities and comments posted on the Internet, and not directly against him.
See also “Computer crime, case V K 1595/08” and “Personal interest, case I ACa 949/09“.
Personal interest, case IX GC 367/11
February 27th, 2012, Tomasz RychlickiThe company Polska Wódka (in English: Polish Vodka) from Warsaw sued two other companies Wódka Polska sp. z o. o. and Wódka Polska sp. komandytowa from Lublin (both companies are lined with Stock Spirits, former Polmos Lublin) for the infringement of the company name based on the regulations included in the Polish Civil Code that provides that the company name of the entrepreneur should differ sufficiently from the company names of other entrepreneurs that carry on their activities on the same market. The company name may not be misleading, in particular as regards the entrepreneur’s person, the object of their activity, place of activity and supply sources, and the Polish Act on Combating Unfair Competition which treats the use of the designation of the undertaking in a way which may mislead customers in relation to its identity, based on the use of trade mark, name, emblem, letter abbreviation or another characteristic symbol already lawfully used to indicate another undertaking, as the act of unfair competition.
Polska Wódka claimed that it has the priority to its company name based on the entry in the Register of Business Entities in the National Court Register (KRS). The name of Warsaw’s company was entered in 2003, and the company names of Lublin’s entities were entered accordingly in 2005 and 2009. Polska Wódka argued that both sued companies act intentionally in order to mislead other market participants.
Both defendants did not agree with the suit and argued that they obtained the right to use their company names under final and binging decisions of the registration court, and noted that Polska Wódka does not proved that it performs any business activity under its company name because there are no annual reports in the KRS that would serve as proof of use.
The District Court in Lublin in its judgment case file IX GC 367/11 dismissed the suit as unfounded. The Court agreed that the company from Warsaw was the first one to start the use of the questioned name, however, it did not provided any evidence of its use in order to prove the confusion of other market participants. The Court also ruled that the protection if afforded to designation that are put in genuine use, not to these that were only registered in the KRS. Finally, the Court noted that the name Polska wódka (Polish vodka) is descriptive term related to a product name that is connected with a specific business activity, and it cannot be appropriated by single company. The Court ruled that Polish vodka is a designation that should be in the public domain, in order to be available for different entities which wish to use such name for their products. The judgment is not final yet.
Criminal law, case II Ka 269/11
November 14th, 2011, Tomasz RychlickiMaria S. was charged by the Prosecutor based on the provisions of Article 278 § 2 of the Polish Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.
Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.
§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.
Such situation happened because, during the investigation, the Police found on her laptop two shareware programs Win ZIP 8.1 and Win Rar 3.0. This software was valued 113,89 PLN each, and the period of time to buy a license already expired. Maria S. explained that she wasn’t aware that she had illegal software installed. She argued that both programs were installed by computer service technicians during the repair of her laptop. This statement was confirmed by a witness expert testimony. The expert said that both programs were installed at the same time, when the operating system was also configured. The expert noted that this is typical practice of computer services personnel who install software needed to install other programs, and do not remove it after the completion of repairing. At the time of installation of both programs, they were legal.
The Regional Court in Biłgoraj acquitted Maria S. of all charges. The Court found that she did not act in order to gain material benefits and she had no full awareness that her behavior lead to the obtainment of computer programs without the consent of the person entitled. The Prosecutor appealed. He argued that Maria S. was guilty because she wasn’t careful enough, and she did not buy both licenses immediately.
The District Court in Zamość in its judgment case file II Ka 269/11 upheld the verdict. The Court ruled that issues of normal or increased diligence or care that should appear in case of expired trial or shareware software, do not belong to the category of the constituent elements of the alleged offense.
Criminal law, case III K 76/08
October 28th, 2011, Tomasz RychlickiIn 2007, Marek Witoszek wrote SEO software that allowed him to change the visibility ranking of a website of the Polish president Lech Kaczyński in search engines, when one of the Polish offensive words was typed in. He was prosecuted and charged based on the provisions of the Article 135 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.
Article 135. § 1. Whoever commits an active assault on the President of the Republic of Poland
shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.§ 2. Whoever insults the President of the Republic of Poland in public
shall be subject to the penalty of the deprivation of liberty for up to 3 years.
The trial has been suspended for two years, because the judgment of the Constitutional Tribunal was expected to answer the question, whether one can be punished for insulting the president as an institution, not as a person. The Constitutional Tribunal in its judgment of 6 July 2011 case file P 12/09 held that Article 135 § 2 of the CRC is consistent with Article 54(1) of the Polish Constitution in connection with Article 31(3) of the Constitution and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, as amended. Mr Witoszek pleaded guilty and has requested a voluntary submission to punishment.
The District Court in Bielsko-Biała in its judgment of 25 October 2011 case file III K 76/08 sentenced Mr Witoszek for three months of imprisonment, and conditionally suspended the execution of a penalty for three years.
Personal interest, case I ACa 1273/11
October 3rd, 2011, Tomasz RychlickiMr Andrzej Jezior is a councillor of the Town Council in Ryglice, and he also runs a personal website available at andrzejjezior.blog.onet.pl. He often post comments regarding affairs of local life of the young Ryglice town. Some readers of his website posted negative comments on Bernard Karasiewicz, who was at this time the mayor of this small town. Despite the fact that Mr Jezior removed these comments, Mr Karasiewicz sued for violation of his personal interest. The suit was based on regulations included in the Polish Act on Elections to municipal councils, county councils and regional assemblies, in connection with regulations included in the Polish Act on the direct elections of village-mayor (prefect), town mayor, president of a city.
The District Court in Tarnów in its order of 15 November 2010 case file I Ns 162/10 agreed with the mayor and ordered Mr Jezior to publish an apology on his website, prohibited him from further distribution of these comments and ordered him to pay 5000 PLN for Caritas of the Tarnowska diocese and the case expenses in the amount of 240 PLN. The Court ruled, that Mr Jezior should be held liable for the comments that appeared on his website, because they came from people enjoying freedom of expression. Running a website that allows for posting such comments should be considered a wrongful action that is contrary to public policy and the principles of social coexistence. Mr Jezior appealed.
The Appeallate Court in Krakow in its order of 17 November 2010 case file Acz 1457/10 dismissed the complaint.
Mr Karasiewicz lost local elections in 2010. He sued Mr Jezior for violation of his personal interest again, alleging the comments caused that he was not re-elected to serve as a mayor of Ryglice. This time the suit was based on the regulations included in the Civil Code.
The District Court in Tarnów in its judgment of 3 October 2011 case file I C 319/11 ordered the defendant to publish an apology in the local press for “distributing” content that infringes upon the personal interests of the plaintiff and his family, to pay 1000 PLN compensation and reimbursement of the proceeding costs in the amount of 650 PLN. The Court dismissed the claim where the plaintiff demanded the payment of compensation in the amount of 10.000 PLN. The Court ruled that defendant is responsible and he should bear the consequences that he has made a forum that was available for the publication of any message. Mr Jezior appealed. The Appeallate Court in Kraków in its judgment of 19 January 2012 case file I ACa 1273/11 reversed the judgment of the District Court and dismissed the suit.