Archive for: Polish District Court

Personal interest, case I C 1050/09

June 3rd, 2011, Tomasz Rychlicki

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

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

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

Civil law, case II Ca 26/11

May 9th, 2011, Tomasz Rychlicki

Andrzej J., a Polish farmer, ordered his 17-year-old son to put up for sale a tractor. He told him to use Allegro.pl, the most popular Polish auction website. It was one of the first auctions on the Internet for both of them. However, his son, who started the action, did not specify a minimum selling price. The auction was attended by six interested parties. The highest offer of 11.000 PLN bid by Adam S., let him to win the auction. Andrzej J. refused to hand over the vehicle, claiming that the winning price was too low. He argued that his son is minor and although he received his father’s command, he exceeded the scope of the mandate, because despite the clear indication, he did not select in the options, the minimum price that should be set to 38.000 PLN (it was set at the last day of the auction at the suggestion of the mother). Andrzej J. claimed that he was not aware that such transaction can be concluded below the minimum price, and he hadn’t the possibility of withdrawing the offer. He argued that he acted under the influence of the error in fact, therefore, he should be released from the conclusion of the agreement.

The District Court in Łuków held that the claim for a vehicle at the price of 11.000 is fully justified. The Court pointed to the wording of Article 70¹ of the Civil Code.

Article 701. § 1. A contract may be concluded by means of an auction or tendering.
§ 2. An announcement of an auction or tendering shall specify the time, place, object and terms of the auction or the tendering, or to indicate how such terms are available.
§ 3. The announcement and the terms of the auction or the tendering may be changed or revoked only when it has been stipulated in their contents.
§ 4. Since the moment of making the terms available and making the bid respectively by an organizer and the bidder according to the announcement of the auction or tendering, they shall proceed in accordance with the provisions of the announcement, likewise the provisions of the terms of auction or the tendering.

In this case, the terms for auctions and the procedures for the conclusion were established by Allegro in its Terms of Service, which were both accepted by the seller and the buyer. According to the terms of Allegro, the seller can make changes to the content of the auction only in three minutes after the auction begins. The Court ruled that the son of Andrzej J. did not act as his proxy, but as a messenger, whose role was purely technical, he had to enter some data on an auction website, therefore he could not be regarded as representative based on provisions of the Polish Civil Code.

Article 95. § 1. Barring the exceptions specified in statutory law or resulting from the character of a given act in law, an act in law may be performed through a representative.
§ 2. An act in law performed by a representative within the limits of the authorization shall have direct effects for the person represented.

Article 96. The authorization to act on behalf of another person may be based on statutory law (statutory representation) or on the declaration by the person represented (power of attorney).

The District Court in Lublin in its judgment case file II Ca 26/11 upheld a lower court’s judgment. See also “Civil law, case I ACa 295/10“.

Personal interests, case I C 588/10

February 11th, 2011, Tomasz Rychlicki

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

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

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

Copyright law, case I ACa 787/11

December 1st, 2010, Tomasz Rychlicki

Stan Borys is a Polish singer and author of the lyrics to the song “Chmurami zatańczy sen”, which was composed in 1974. A longer excerpt from the chorus “Ciemno juz zgasły wszstkie światła, ciemno już, noc nadchodzi głucha” has been used by Ryszard Andrzejwski, a Polish raper called PEJA as a sample in his song “Głucha noc” which was recorded in 2001 and released by his publisher T1-Teraz sp. z o.o. on two albums in 2001 and 2002. These albums were distributed by EMI Music Poland. The sampled part was transformed by changing the voice octave and by increasing the music tempo. The song became a hit that was aired in radio and television stations.

CT Creative Team S.A. sells multimedia content to mobile phones based on SMS and WAP technology using Premium Rate numbers. On 26 August 2003 the company entered a license agreement with T1-Teraz for distribiution of short fragments of songs recorded by PEJA. This also included 30 seconds of “Głucha noc”. These music pieces were uploaded to CT Creative MEdia server. CT was obliged to pay 0,15 PLN for each downloaded fragment, the payment followed within 14 days after the end of each calendar quarter. CT was also required to provide an additional statement containing the information on songs/fragments used together with the original titles, numbers of downloads and numbers of fees charged. A year later the two companies signed an similar agreement with a fee 0.,5 PLN per downloaded song. In the period from September 2003 to October 2005, this song has been downloaded 859 times as a phone ringtone and CT earned 3465 PLN.

Stan Borys found out about this song in 2004. To his surprise, he was informed at the press conference, held together with PEJA. Resentful of this situation, he explained that he did not consent to the use of his song by PEJA. His attorney requested the CT Creative to stop distribution of the song and the ring tone was withdrawn. Stan Borys sued CT, T1-Teraz, and Ryszard Andrzejewski.

The District Court in Warsaw in its judgment of 14 September 2010 case file I C 626/06 held most of the claims were justified. The Court ruled that the fragment used by PEJA by its transformation constitutes a derived work made from the work of Stan Borys. The manner of disposal of the derived work and the use thereof should be subject to the consent of the creator of the original work (the so-called dependent copyright), except where the economic rights in the original work have expired. Stan Borys is entitled to protection of his moral and economic rights. The court disagreed with the argument that the license agreement allows for the free dissemination of the work as specified in the agreement. The obligation to indicate the creator of the original song is saddled with both the creator of derived work (if one does not do that he or she risks the charges of plagiarism) and that one who distributes a derived work. The Court cited the judgment of the Appellate Court in Warsaw of 14 March 2006 case file VI ACa 1012/05. See “Copyright law, case VI ACa 1012/05“.

The court found that the lack of consent on the creation of a sample and dissemination of the work and the lack of designation of the author of the original work is the evidence of unlawful infringement of copyright and the rights to artistic performance by the CT Creative. In the assessment of the Court, the infringement was culpable in the form of at least negligence because it was associated with lack of diligence in examining whether distributed ringtones are not other people’s songs/works and such an obligation results from the professional nature of CT Creative’s business. However, intentional guilt can be attributed to CT Creative from 12 September 2005 when the company received a corresponding letter from Stan Bory’s attorney.

The court ruled that as a result of CT actions Stan Borys was deprived of possibility to exercise his rights of supervision over the use of the work, authorship rights and rights to cause the work to appear under his name and surname. The court also took into account the form in which the infringement has occurred. Stan Borys claimed that this violation was for him the more severe because the fragment of “Chmurami zatańczy sen” has been distorted in a caricature way and it was used in hip hop song, which included obscene words. Stan Borys did not and does not want to have nothing in common with this genre of music. The Court agreed with the argument that creating this sample in this given form depreciated previous works of Stan Borys. The court held that there is a causal link between the activities of CT Creative and the harm and damage caused to Stan Borys. This applied both to his personal rights (intangible) and economic rights to the copyrighted work because he did not receive any remuneration for the distribution of. The court ordered the cessation of the use and distribution of the work and ordered to pay 15000 PLN for the infringement of personal rights and 10000 PLN for the infringement of economic rights and rights in performance (three times of the equitable remuneration, which at the time of the enforcement would be payable to the entitled person for granting the permission for the use of the work), and to publish an apology.

CT Creative appealed. The Appeallate Court in Warsaw in its judgment case file I ACa 787/11 reversed the sum of compensation and send the case back for reconsideration.

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

Copyright law, case X GC 74/08

August 23rd, 2010, Tomasz Rychlicki

Hasbro company filed copyright infringement suit against INTERKOBO Sp. z o.o., a Polish company that imports and distributes games, toys and sports articles, mainly from China, Hong-Kong and Taiwan. Hasbro claimed that Interkobo by acts of importation, advertising and selling of games such as “Colour Twist”, “Who is it?”, “Worldbusiness” infringes on Hasbro’s copyrights.

The District Court in Łódź in its judgment of 8 December 2009 case file X GC 74/08 based its findings on expert witness with regard to formal analysis of works in question as to whether games imported by Interkobo infringes on Hasbro’s rights. The Court agreed with the expert that the abstractly conceived rules of the game are ideas that cannot be copyrighted. The authorship of a game understood as a set of abstract rules by which the game is to take place cannot be granted. The court did not excluded the protection of such abstract rules of the game based on the general principles of the civil law, but acknowledged that it remains outside the subject matter of the case and did not provide further arguments in this regard.

The Court also took into account that Hasbro is a foreign company and according to provisions of Article 2(6) and Article 5(2) of the Berne Convention, the protection of its rights should be governed exclusively by the laws of the country where protection is claimed, i.e. 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.

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

Personal interest, case I C 144/10

August 15th, 2010, Tomasz Rychlicki

A Polish citizen filed a civil suit against Nasza Klasa company – the owner and operator of social networking website. He seek an apology and a payment for the infringement of his personal interest by the fact that Nasza Klasa refused to provide the plaintiff with personal data of the person who set up a fake profile, and allowed for the creation of such a profile, which was finally closed after several unsuccessful requests.

The Inspector General for Personal Data Protection in its decision of 5 March 2010 ordered Nasza Klasa to provide the plaintiff with information (full name, address, e-mail and IP address of a computer) of the person who set up the profile of the YYY number on nasza-klasa.pl website, ordering at the same time, to fulfill the obligation referred to in Article 33(1) of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments.

Article 33
1. At the request of the data subject, within the period of 30 days, the controller shall be obliged to notify the data subject about his/her rights, and provide him/her with the information referred to in Article 32 paragraph 1 point 1-5a as regards his/her personal data, and in particular specify in an intelligible form:
1) the category of personal data contained in the file,
2) the means of data collection,
3) the purpose and the scope of data processing,
4) the recipients of the data and the scope of access they have been granted.

While executing this decision Nasza Klasa informed the plaintiff that the fictional profile was set up on behalf of a person of a first name “s d.”, the second name “w. I’m gay”, having e-mail address xyz@wp.pl. At the same time the company informed the plaintiff that it has no data with regard to IP addresses from which the profiles are set on its website, these data are not collected, and kept or archived. However, as it was also clear from the order of the District Court in Poznań of 16 June 2010 on an ongoing parallel criminal proceedings that Nasza Klasa provided the Police with the IP number, host and e-mail address of the person who has registered this fictitious profile containing personal information of the plaintiff.

The District Court in Wrocław in its judgment of 23 July 2010 case file I C 144/10 ruled that the way that Nasza Klasa has executed the decision bears hallmarks of malignancy, where the repetition of the contents of the fake profile certainly violated the plaintiff’s dignity. The Court noted also that the activity of Nasza Klasa which allows its users for the opening of online accounts, including fictitious accounts does not have the characteristics of illegality. Therefore, the plaintiff was not allowed to infer the responsibility of Nasza Klasa, because during the use of legal mechanisms, there was an infringement of his personal interests. In other words, the illegal nature has only the act of the direct infringer – an unknown person who registered fictional profile on nasza-klasa.pl website, that was containing personal information of the plaintiff, including his image, in the context of information insulting him.

The mere creation of a registration/login mechanism within defendant’ hosting services, without any specific negligence in the performance of duties imposed by law cannot justify the defendant’s liability for the infringement of personal rights of the plaintiff. According to the Court such reasoning would justify shifting the liability of the direct offender of personal right to the hosting service provider.

The Court held that Nasza Klasa committed a violation of personal rights by refusing to grant the plaintiff an access to personal data of the person who set up a fake profile infringing on his personal interest and being opprobrious to his identity, despite the fact that the plaintiff was entitled to obtain it, which was confirmed by final decision of the GIODO. The Court ruled that Nasza Klasa company as a professional hosting provider, which created and maintains a social networking website – in accordance with its TOS – should be aware of how the decision of Inspector General for Personal Data Protection should be executed. Moreover, Nasza-Klasa was aware of the circumstances of the plaintiff’s case, which lasted almost a year. At that time, the plaintiff has shown a determination to assert his rights, despite the fact that without a personal data of the offender, has repeatedly been put in a kind of a hopeless situation, not only by law enforcement, but also by Nasza-Klasa company. Since Nasza-Klasa did not have the name of the person who registered the fictitious profile with the data of the plaintiff, it shall inform the plaintiff and explain the problem and execute the decision of the GIODO with regard to available data (IP, e-mail address of the perpetrator). Nasza Klasa decided to file an appeal complaint. The Appelatte Court in Wrocław in its judgment of 18 Nobember 2010 case file I ACa 1129/10 reversed the previous judgment and dismissed the suit.

Trade mark law, case IX GC 104/06

July 5th, 2010, Tomasz Rychlicki

In 2003, Polish company Zakłady Tytoniowe Lublin started to produce “Full Flavor ZTL Mont Blanc” and “Light ZTL Mont Blanc” cigarettes. Te tanie papierosy miały być konkurencją dla przemycanych z Ukrainy papierosów Monte Carlo. These latter cheap cigarettes were meant to be competition for Monte Carlo cigarettes smuggled from Ukraine.

R-160948

German company Montblanc – Simplo sued Polish company for infringement of Montblanc trade marks’ reputation, unfair competition delict and infringement of personal rights/interest. Montblanc – Simplo demanded the cessation of production of these cigarettes and the publication of a statment on illegal use of the trade mark, in nationwide newspapers.

R-160949

The District Court in Lublin in its judgment case file IX GC 104/06 dismissed these claims. The court held that that the contested name is written on cigarette packs separately (as the name of a mountain peak) and in a figurative aspect it has a different color, font and background. Therefore it cannot mislead consumers, what is more important, these are goods of various kinds. The expert in the field of commodities found that use of the trade mark for cheap cigarettes has no effect on the reputation of Montblanc sign and there is no percolation of the two groups of consumer of both products. Also an expert in the field of social psychology, did not reveal blurring of Montblanc reputation by the use of the geographical name “Mont Blanc” on the cheap cigarettes.

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.

Internet domains, case I C 2179/09

April 26th, 2010, Tomasz Rychlicki

On 2 March 2010, the District Court in Białystok I Civil Division issued in absentia judgment case file I C 2179/09, in which it ordered the defendant, a natural person known as “domain name investor” to discontinue the use of tygodnikpowszechny.pl domain name. The court ordered the defendant to publish a full-page paid ad in a weekly magazine, and two ads in two nationwide newspapers (Gazeta Wyborcza and Rzeczpospolita), with an apology defined by the Court. The court also ordered the defendant to pay the amount of 25000 PLN as compensation for infringement of personal rights of Tygodnik Powszechny sp. z o.o. company, and the amount of 15000 PLN as damages for infringement of personal rights of Father Adam Boniecki, the editor of Tygodnik Powszechny. These amounts should be transferred to Fundacji Polska Akcja Humanitarna (the Fundation Polish Humanitarian Action). The court ruled the judgment to be immediately enforceable. The judgment is final.

The court held that the use of Internet domain name may constitute a violation of personal rights taking into account the content which is visible at a website available under a given domain name. The questioned domain name was parked and directed to a website with advertising links. Such content, including texts, which were the visualization of sponsored links, constituted in Court’s opinion an infringement of personal rights.

This judgment is very important for Polish and foreign companies which became the target of cybersquatting if we consider that the Polish case law on personal interests, for instance the Appellate Court in Poznań in a judgment of 22 October 1991, case file I ACr 400/90, already established the rule that the firm under which the company conducts its business, has the same meaning in legal relations, as the name of an individual person.

See also “Polish case law on domain names“.

Personal interest, case I C 1272/09

March 19th, 2010, Tomasz Rychlicki

The District Court in Wrocław in its judgment of 18 March 2010 case file I C 1272/09 ruled that the advertising of one of the Polish banks that promoted payment cards in such a way that it used profile pictures of users of nasza-klasa.pl website infringed their personal rights. A user who logged into his or her profile was presented with an advertising that showed his or her face/image placed on credit card together with a slogan “your card for your personal account may look like this”. The Court held that users agreed to the provisions of the terms of service, but the permission to use their pictures concerned solely the purpose of social networking, not advertising. The Court ordered the owner of nasza-klasa.pl to pay the plaintiff 5000 PLN as a compensation. This judgment is not yet final.

Internet websites, case I C 1532/09

March 13th, 2010, Tomasz Rychlicki

The Observatory of Media Freedom in Poland run by the Helsinki Foundation for Human Rights reported on a case of Augustyn Ormanty, the mayor of Kalwaria Zebrzydowska town, who sued Tomasz Baluś, the administrator of naszakalwaria.pl website, for personal rights infringement after he found that the website hosted defamatory comments directed to his person. Mr. Ormanty decided to request the court to order the removal of 18 comments because he received negative response from Tomasz Baluś who claimed that these questioned statements put in the form of comments to information published at his website, are the individual opinions of people who wrote it, for the content of which, Tomasz Baluś is not responsible, because they are owned by their authors.

The District Court I Civil division in Kraków in a judgment of 11 MArch 2010 case file I C 1532/09 ruled that naszakalwaria.pl website cannot be deemed as the press according to provisions 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, because it did not meet the criterion of periodicity. The court noted that naszakalwaria.pl website is rather a collection of publications and serves as a wall on which people are able to post their comments. The court emphasized that the purpose of Internet portals, such as naszakalwaria.pl is primarily to initiate and shape public debate on issues important to the local community. The court added that the Internet is, in principle, free from control and could be subject to control only, if it fits the regulation provided in the APL. The court also stated that Augustyn Ormanty failed to prove that the offensive – in his opinion – comments related to the facts. According to the Court, they were rather opinions, which in principle cannot be judged based on the criterion of truth and falsehood.

In addition, the court held that Tomasz Baluś had a limited capacity for meticulousy checking and editing of the entries appearing on the forum of his website because of their large numbers. The court stated that the measures taken by the Mr. Baluś to search and control the entries for vulgarity and to remove obviously insulting comments were sufficient. According to the Court, Mr. Ormanty had a possibility and the right to request the removal of comments he found insulting, based on provisions of 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 pointed out to the argument stating that the mayor is a public figure who must reckon with the fact that its activities may be subject to criticism. As a public figure, Mr. Ormanty should show greater resistance to critical opinions, negatively evaluating the performance of the functions entrusted to him. In conclusion, the Court added that the law has not kept pace with the development of modern technology and therefore, it does not precisely regulate the issues of freedom of expression in the Internet. Therefore, the careful evaluation of such situations, is entrusted to the judges. Their task is to ensure and guarantee the freedom of expression in similar cases.

See also “Social networking sites, case I A Ca 1202/09“.

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.

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“.

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“.

Copyright law, plagiarist pays

December 11th, 2009, Tomasz Rychlicki

According to the recent article published by Polish newspaper Gazeta Wyborcza, entitled “Kurpisz ma wyrok za plagiat. I to z błędem!“, Kurpisz – Polish Publishing House from Poznan has been found guilty of plagiarism and has to pay PLN 148,000 as well as apologize to the journalist whose copyrights it infringed.

Kurpisz was accused of plagiarising by Andrzej Gowarzewski, a sports journalist from Katowice, the author of the Encyclopedia of World’s Soccer Championships (in Polish: “Encyklopedii piłkarskich mistrzostw świata”). Gowarzewski spent over a decade travelling around, in particular, South America collecting detailed data (such as the original spelling of the players names, exact time of the goals scored during the games, team composition) for his encyclopedia. His efforst were rewarded when british „World Soccer“ magazine – an undoubted authority in the field – has pronounced the book one of the 7 best books on soccer in the world.

Gowarzewski has been working and successively expanding his encyclopedia since 1991. In 2001 he came across a similar book, published by Kurpisz Publishing House. To his great astonishment the book contained information about 500 games, literally “carbon copied” from his work. The publisher repelled the accusations, claiming that it had used information commonly available and thus not protected by copyright, very much like the data in the yellow pages. Kurpisz arguments would have most likely prevailed, had it not been for the flair of the journalist, who set a smart trap for the publisher: Gowarzewski deliberatley made several material mistakes in his encyclopedia, just to subsequently find that they were repeated in the Kurpisz version of the book.

The District Court from Poznań had no reluctances finding the publisher guilty of plagiarism. It held that in copying such substantial data, thouroughly and personally collected over the years by the journalist, the Kurpisz has free ridden on the creative efforts of Gowarzewski and should pay him PLN 148,000 in damages (that is 15% of the proceeds from the sale of Kurpisz’s books, multiplied by 3, the so-called treble damages) based on article 79 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.

Article 79
1. The rightholder may request from the person who infringed his/ her author’s economic rights to:
1) cease the infringement;
2) eliminate the consequences of the infringement;
3) repair the inflicted damage:
a) on the general terms or
b) by payment of double or, where the infringement is culpable, triple the amount of respective remuneration that would have been due as of the time of claiming it in exchange for the rightholder’s consent for the use of the work;
4) render the acquired benefits.

2. Regardless of the claims referred to in paragraph 1, the entitled person may request:
1) single or multiple announcement made in the press with the statement of appropriate content and form or to announce to the public a part or all of the court’s judgment in the considered case, in the manner and within the scope specified by the court,
2) to pay by the person who infringed author’s economic rights, the appropriate sum of money, not less than twice of the amount of firm benefit achived by the perpetrator of the infringement, to the Fund referred to in article 111, if the infringement is culpable and was made during the economic activities carried out in someone else or in his own name, even on someone else’s account.

The plagiarist must also publicly apologize to the author on the pages of a nation wide newspaper – Rzeczpospolita.

It has not been the first time that the Kurpisz Publishing House infringes copyrights of another and has to bear the consequences. In 2004 the court in a similar case imposed on the publisher a fine of over PLN 500,000, which constituted 60% of the proceeds from the sale of copied “Dictionary of contemporary Polish”. The high amount of penalty was justified by the fact that the publisher had copied as much as 60% of the dictionary of Polskie Wydawnictwo Naukowe (PWN).

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

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“.

Internet domains, case X GC 1245/03

October 6th, 2009, Tomasz Rychlicki

The District Court in Łódź, X Commercial Division in its judgment of 22 June 2004, case file X GC 1245/03 decided the first Polish domain name case in Microsoft versus Robert Rudecki. The judgment was issued in absentia. The case concerned microsoft.pl and microsoft.com.pl domain names.

See also “Polish case law on domain names“.

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 C 238/06

June 15th, 2009, Tomasz Rychlicki

In the town of Bochnia, the so-called annual “Bochnia Independence Half-Marathon” used to take place. The event had been organized by the town and county authorities, in collaboration with the originator, one Zenon G., ever since year 2001. As the name indicates – the event’s primarily purpose was to celebrate the regained independence of the town of Bochnia and attracted a substantial amount of participants each and every year. The cooperation between the county and the “founding father” lasted for 4 happy years until it was broken off abruptly in 2005, due to a dispute that sparked over money. The authorities of Bochnia decided to organize the marathon on their own, without either the help or the permission of the originator. This understandably got the latter’s hackles up. The case ended up in court.

The District Court in Tarnów in its judgment of 20 December 2007 case file I C 238/06 held that the route of the half-marathon is an artistic work. The originator accused the county and the mayor of infringing his copyrights, claiming that both the initiative as well as the sole idea to organize the run, along with the manner in which the whole event was planned and arranged, met the prerequisites of an artistic work within the meaning of the polish copyright law, including the requirements of “creativity” and “individual character”.

The Court before which the case appeared, agreed with the Claimant’s theory and held that whenever talking about an artistic work within the meaning of Article 1 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, “the entirety of features, in their original juxtaposition” should be taken into consideration. The Court emphasized that the fact that the commonly available elements had been used to create the work, does not necessarily mean that such work does not fall within the definition of an artistic work under the Article 1 of the AARNR. Although, as a matter of rule, such individual elements, in and of themselves, are never protected under the polish law, any and all compilations thereof do get protection so long the manner in which they’re segregated, arranged and presented demonstrates certain degree of originality and creativity. In the Court’s opinion the process of creating a work is a subjective one and is a “projection of the author’s imagination”. If the result of such process is original and unique enough (meaning it can be easily distinguished from any other results of human activity), then it shall be protected by law as an artistic work. This happens every time we deal with a specific configuration of elements, particularly relevant and accurate when juxtaposed with the intended result, where the author uses his unbound discretion to select and arrange such elements. To apply this to the case at hand, the Claimant’s idea to organize the half-marathon to celebrate the town’s Independence Day along with a scrutine preparation of the marathon race plan so as to obtain a special certificate of the Polish Athletics Association, meet the requirements of an artistic work, as understood by the Act. The fact that similar race events had been organized by the town of Bochnia long before 2001 remained without any effect on the Court’s conclusion.

In particular the Claimant prepared the race plan independently, selected the respective streets of the city in such a way that the whole race plan would constitute an entirety, had a proper paving, that is a hardened one, and so that there were no substantial differences in route gradient. The race plan should take account of the conditioning of the terrain, routes of public transportation and additionally the length of the route should equal half the length of the actual marathon. Moreover, the Claimant saw to it that the race plan be certified and the result, which the participants of the race would likely achieve, could be comparable to those achieved in other like races in the country. The race plan has been recorded in the form of a map with the marathon route marked on it and the race description attached. To plan the route in such, and not other, way determines its originality and creativity, since no one has ever before drew the route of the Bochnia race in such topographic layout.

Additionally, the Court pointed to the new categories of the participants (teachers and persons with disabilities), in comparison to those of the Bochnia races that were organized before 2001, highlighting at the same time that “the requirement of novelty is not an inevitable feature of an artistic work”. The Court rejected the argument that any other person could prepare the race plan of the said half-marathon and reiterated, after the Supreme Court, that “the possibility of achieving analogical results by two different authors does not suffice to deprive a particular act of creativity, of the individual character.”

To conclude, the District Court in Tarnow held that by organizing the “Bochnia Independence Half-Marathon” against the will of the originator and using the race plan prepared by him, the Respondents infringed upon the latter’s copyrights. Hence, the Claimant was entitled to the protection of the polish copyright law. In the Court’s opinion the Respondents should have never free ridden on someone else’s creative efforts and should have come up with their own idea and race plan.

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

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.

Computer crimes, case VI K 849/07

October 6th, 2008, Tomasz Rychlicki

On August 11, 2008, the District Court in Glogów (VI Wydzial Grodzki) issued an important ruling case file VI K 849/07, regarding a man accused by the prosecutor of using computers to breach electronic security of a company server and database which allowed him to obtain information not intended for him (personal data) thereby acting to the detriment of the business. Mateusz M. was accused by the prosecutor based on regulations provided in Artice 267 §1 of the Polish Penal Code.

Chapter XXXIII. Crimes against protection of information
(…)
Article 267.
§ 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 2. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.
§ 3. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1 or 2 discloses to another person.
§ 4. The prosecution of the offence specified in § 1 – 3 shall occur on a motion of the injured person.

Mateusz M. had browsed through an internet company website and found that the service contained serious programming errors. He put into the login form a string of signs as follows “‘ or 1 = 1” (and repeated this operation in the password field), which resulted in him being signed/logged into a random user account which allowed him to gain access to several user accounts and their personal data. Mateusz M. decided to exploit this opportunity and made contact with company’s representatives. He informed them that he detected a gap in their website security which allowed him entry to the marketing database of firms owned or connected with the company which operated this online database. In the meantime, Mateusz M. checked other websites and online services created by the same authors of the first website. He has also found that all of them contained the same programming errors because all these websites were built using the same content management system (CMS). Mateusz M. was invited by the company to sign a contract to remove these programming errors. He was also presented with a non-disclosure agreement (NDA), which he signed. However the NDA’s date was set prior to the date he had detected the programming errors and this was used by the company to enable the police, who were co-operating with the company, to arrest Mateusz M.

During the pre-trial proceedings the court’s expert in the field of information technology stated that in his opinion Mateusz M. had used “a form of attack on the company’s database called SQL Injection”; the aim of such an attack is “to extract confidential information from the database and to disrupt its operation”. In the course of the proceedings before the court, the District Court in G#x142og1ow allowed the counsel for the defence to admit evidence of another expert.

The second expert provided the court with an opinion that by introducing a string “‘ or 1 = 1” Mateusz M. had not made any breach of the database, he did not crack any password allowing for access to the database, he did not type or insert any software code and Mateusz M. had not affected the functioning of the database in any way. According to the second expert, Mateusz M. had not removed the database security, and he had not changed the password access, nor did he create any new accounts in the database. In this expert’s opinion, the introduction of the said string by Mateusz M. should be considered as an “SQL Injection” method that was used to circumvent the protection of a database, but that it was permitted by the improper and inadequate protection scheme applied to the database by its creators. The “Sign in” form of the database was designed in such a way that merely typing any string of characters was permitted as an input of data for this type of form. The database authors had not implemented any solutions to verify whether the database stored a user name or password attached to such a string, and as it had not, the database did not generate a proper error message

The court held that the action of the accused failed to comply with the statutory elements of Article 267. In the court’s opinion, breaching security occurs when the offender destroys or removes the security, or when the impact of the offender’s action on the security temporarily removes its protective function. Thus a person who gains access to sensitive information without breaking any security measures is not criminally responsible.

The court ruling acquitted the accused of all the charges based on art.632(2) Polish Criminal Proceedings Code, and the court held that the costs of wrongful prosecution were to be covered by the state. This decision was final and consequently there are pending amendments to the Polish Criminal Code relating to the aforementioned regulations.

Trade mark law, case V ACa 469/07

January 7th, 2008, Tomasz Rychlicki

The District Court in Częstochowa in its judgment case file V GC 83/04, and the Appellate Court in Katowice in its judgment case file V ACa 469/07, ruled that the name DELICJE (better known by English readers as Jaffa cakes) is not a distinctive sign. This ruling ends long standing legal battle that was started by Lu Polska S.A. (owned by Kraft Food) against other five Polish companies. However, this judgment is not consistent with other courts’ decisions regarding the trade mark Delicje R-70513. The District Court in Warsaw ruled on 27 march 2007, that Tago Company, owned by Tadeusz Gołębiowski, which produces jaffa cakes under different brands such as Delicje, Delicje Mazowieckie, Delicante and Fruktolicja, infringed on Lu Polska’s trade mark.