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Archive for: Polish Supreme Administrative Court

Trade mark law, case II GSK 839/10

January 17th, 2012, Tomasz Rychlicki

Nufarm Australia Limited, the owner of the trade mark DUAL SALT TECHNOLOGY R-164428 registered for goods in Class 5, requested the Polish Patent Office to decide on the lapse of the right of protection for DUAL IR-0534713 owned by Syngenta Participations AG. Earlier before, Syngenta opposed the registratin of the trade mark DUAL SALT TECHNOLOGY R-164428.

Syngenta requested the PPO to dismiss the request. The Company provided evidence of use of the trade mark DUAL IR-0534713. There were six copies of VAT invoices from the period from 2002 to 2006, of sale of goods bearing the sign “DUAL GOLD 960 EC”, and two newspaper articles concerning this product and the material safety data sheets of “DUAL GOLD 960 EC of August 2005.

The Polish Patent Office decided on the lapse of the right of protection for DUAL IR-0534713 and dismissed the opposition against the registration of the trade mark DUAL SALT TECHNOLOGY R-164428. Syngenta filed a complaint against this decision. The Voivodeship Administrative Court in its judgment of 19 March 2010 case file VI SA/Wa 1807/09 dismissed it. Syngenta filed a cassation compliant.

The Supreme Administrative Court in its judgment of 3 October 2011 case file II GSK 839/10 repealed the contested judgment and returned it to the VAC for further reconsideration. The SAC ruled that the cassation complaint can be based on the following grounds: a) the violation of substantive law by its erroneous interpretation or misuse, or the violation of proceedings rules, if it could affect the outcome of the case. The specific provisions of substantive law or procedural law, which were violated the court of first instance, should be indicated. Furthermore, it should be precisely explained What was the misapplication or misinterpretation – in relation to substantive law, or it should be demonstrated what was the significant impact of the violation of procedural law to decide the case by the court of first instance – in relation to the rules of proceedings. The Supreme Administrative Court cannot change or precise cassation complaints and their grounds, or otherwise correct them, due to limitations resulting from the mentioned rules. If the cassation complaint alleges violation of both substantive law and proceedings, as it was in the present case, the Supreme Administrative Court recognizes the allegation of violation of proceedings, in the first place.

The SAC decided the PPO has erred in its findings because it considered that the evidence submitted on, was from the years 2002-2006, while there was also an invoice from March 2007 on the case file, which was of the relevance to the case. It was a sales invoice of the preparation DUAL GOLD 960 EC 12 XI and DUAL GOLD 960 EC 4X 5 L. Surprisingly, the Supreme Administrative Court acknowledged, that the case facts showed that the trade mark DUAL GOLD lapsed on June 2006, so as a trade mark it ceased to exist on the market from that date (it was not registered). Since the trade mark DUAL GOLD ceased to exist in legal transactions after June 2006, the Polish Patent Office should examine whether this sign could be used in this situation, as indicated on the invoice of March 2007, or perhaps the invoice indicated the use of any other trade mark, for example, the trade mark DUAL, and therefore the Article 170 (1) of the IPL should be applied in this case.

Article 170
1. Subject to paragraph (2), the Patent Office shall dismiss a request for declaring the right of protection lapsed in the case referred to in Article 169(1)(i), if before the submission of the request genuine use of the mark has started or has been resumed.

2. Start or resumption of the use of the trademark after the expiration of an uninterrupted period of five successive years of non-use and within a period of three months preceding the submission of the request for declaring the right of protection lapsed, shall be disregarded, if preparations for the start or resumption of the use have been undertaken immediately after the right holder became aware of possible submission of such request.

3. Paragraphs (1) and (2) shall apply accordingly in the cases referred to in Article 169(7).

4. Loss of a right to use a sign or a symbol, referred to in Article 131(2) incorporated in a trademark shall not constitute a ground for non-making a decision declaring the right of protection for that trademark lapsed, if that sign or symbol ceased to be used in the trademark before a request for the declaration of the right of protection lapsed has been submitted.

In light of this evidence, which were the facts of this case, where a detailed analysis could affect the outcome of the case, it was premature by the court of first instance to rule and to say that, in this case that the genuine use of the mark has not started or has not been resumed, and PPO in this case did not erred in law, because it has analyzed all the evidence gathered. Considering other procedural allegations, the SAC held that administrative courts are not required in justification of its judgments to refer to each decision of Polish or European courts, that were cited by the author of a complaint. Such obligation can not be inferred from any provision of the Polish Act on Proceedings Before Administrative Courts. However, the administrative court should refer to these judgments, of which the applicant derives important arguments for the assessment of the case. In this case, the Court of first instance did not meet this requirement.

The SAC noted that the doctrine of law and case-law indicate that the trade mark proprietor may use its sign in an altered form in connection to the form of a sign that was registered. This alteration however, cannot apply to elements that decide on the distinctiveness of the sign, or may not lead to changes in represented form as a distinctive whole. See the judgment of the Supreme Administrative Court of 24 May 2006 case file II GSK 70/06. The SAC confirmed the high degree of freedom to dispose of a trademark by its proprietor, and cited the judgment of the Supreme Administrative Court of 24 June 2008 case file II GSK 251/08. See “Trade mark law, case II GSK 251/08“. The SAC found that the VAC has not sufficiently analyzed of all substantive rules in the context of this case. However, both situation where the violation of substantive law may happen, i.e., violation of substantive law by its incorrect interpretations or inappropriate use, refer only to cases where the facts of the case were established in no uncertain terms. Otherwise, the alleged breach of substantive law is at least premature. This situation took place in this case, because the author of the complainant cassation alleged in the first place the violation of the proceedings by the VAC. The violation of proceedings was based on the refusal by the court of first instance to repeal the decision issued by the Polish Patent Office, in a situation when that PPO did not adequately explain the facts of the case and did not examine in a comprehensive manner the whole of the evidence.

Copyright law, case I OSK 678/11

November 3rd, 2011, Tomasz Rychlicki

This is the continuation of the story described in “Copyright law, case II SAB/Łd 53/10“. The Supreme Administrative Court in its judgment of 21 July 2011 case file I OSK 678/11 ruled that copyrighted works in the form of test questions, if they are used for the state exam, become official documents, and the unused questions, which are the so-called “pool of questions” are deemed as documentary material for the purposes of Article 4(2) of the ARNR.

Art. 4. The following shall not be protected by copyright:
(1) normative texts and the drafts thereof,
(2) official documents, documentary material, devices and symbols,
(3) descriptions of patents and other protection titles,
(4) mere news items.

The court emphasized that different types of materials that are in the possession of the public bodies are not public information, because their content (intellectual property content) is not used or was not used in dealing with any of the public cases, and thus such material did not acquire the characteristics of official documents. Therefore, the argument raised in the cassation complaint that a particular set of questions or a single question from the pool of questions, that was not used in the state exam should be disclosed, was completely groundless.

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

Access to public information, case I OSK 667/11

October 23rd, 2011, Tomasz Rychlicki

The mayor of the Polish town Rabka-Zdrój refused to disclose land-use planning maps. The request was filed according to the provisions of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.. The mayor decided that copyright law does not allow for the disclosure, because these maps were created by the Studio of Architecture and Urban Design from Kraków. The applicant filed a complaint against this decision. The Voivodeship Administrative Court in Kraków in its judgment of 22 November 2010 case file II SAB/Kr 114/10 ordered to provide the requested information. The Mayor filed a cassation complaint.

The Supreme Administrative Court in its judgment of 15 July 2011 case file I OSK 667/11 dismissed it, and held that as public information are deemed not only documents that were directly created/edited and produced by a public authority, but such a character have also documents that the authority uses to carry out the tasks entrusted to the law, even if the copyrights belong to another entity. The most important is the fact, that these documents are used to carry out public tasks by certain authorities and have been produced on behalf of those bodies. Therefore, it is not about exercising copyrights, but about the access to the content of the document that was created on behalf of public administration in order to carry out public tasks. The SAC noted that this opinion is already established in the case law of administrative courts for many years. For instance, the judgment of the Supreme Administrative court of 9 February 2007 case file I OSK 517/06, the judgment of the SAC of 7 December 2010 case file I OSK 1774/10, or the judgment of the SAC of 18 September 2008 case file I OSK 315/08.

In this case, the Court had no doubt that the maps were made in order to perform a specific public task, and were commissioned by public administration body. Its disclosure is not deemed as exercise of the copyright, but as the implementation of the right to access public information. If, there were statutory barriers to disclose such information in a certain way or in a particular form, or there were statutory grounds for refusal of access to public information, the Mayor was obliged to deal with the request in the form of process. However, the lack of disclosure, and lack of procedural decisions in this matter meant, that it was administrative inaction.

Tax law, case I FSK 1215/10

September 24th, 2011, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 9 September 2011 case file I FSK 1215/10 ruled that activities of the Polish Artists’ Association, a collecting society which is responsible for collective management of artists’ and performers’ rights that is based on signing of licensing agreements with copyright users and collecting and distribution of royalties, is deemed as a service within the meaning of the Act on Goods and Services Tax – GSTA – (in Polish: ustawa o podatku od towarów i usług) of 11 March 2004, Journal od Laws (Dziennik Ustaw) No. 54, item 535 with subsequent amendments, and such services are not subject to tax exemptions, because the association charges a fee from these activities, and it is not funded by membership fees.

Trade mark law, case II GSK 615/10

September 7th, 2011, Tomasz Rychlicki

Mr Roman Oraczewski Oficyna Wydawnicza PRESS-MEDIA requested the Polish Patent Office to invalidate the right of protection for the trade mark “Sto Panoramicznych” R-102530 owned by TECHNOPOL Agencja Wydawnicza Spółka z o. o. and registered for goods in Class 16 such as magazines. The PPO invalidated this trade mark and ruled that this designation is descriptive and informative, because it is carrying explicit message on the number and type of crosswords included in each copy of the magazine. TECHNOPOL filed a complaint against this decision, but it was dismissed by the Voivodeship Administrative Court in its judgment of 16 February 2010 case file VI SA/Wa 1862/09. TECHNOPOL decided to file a cassation complaint. The Comapny argued inter alia that its trade mark has acquired secondary meaning because TECHNOPOL also used similar signs, for instance “100 panoramicznych” R-102531, which is a modification of the trade mark “Sto Panoramicznych”.

The Supreme Administrative Court in its judgment of 25 May 2011 case file II GSK 615/10 dismissed the complaint and ruled that the use of a sign in order to prove its secondary meaning, can not be documented by the use of other similar designation that is also a separate, registered trade mark.

Trade mark law, case II GSK 746/10

September 2nd, 2011, Tomasz Rychlicki

This is the continuation of the story described in “Trade mark law, case VI SA/Wa 1988/09“. Kraft Foods Polska filed a cassation complaint.

R-91506

The Supreme Administrative Court in its judgment of 12 July 2011 case file II GSK 746/10 dismissed the complaint and held that the reputation of the trade mark and homogenity goods bearing the signs at issue – even if they could be taken into account while assessing the likelihood of confusion – cannot challenge the established view that there is the lack of similarity between these trade marks. The Court decided that trade marks that were subject to the opposition proceedings do not contain a common element being the same surname, because the meaning of the POLO word in these trade marks is different.

Trade mark law, case II GSK 553/10

August 19th, 2011, Tomasz Rychlicki

Przedsiębiorstwo Przemysłu Spirytusowego POLMOS w Warszawie applied for the right of protection for the word trade mark „spirytus rektyfikowany” (in English: rectified spirit) Z-204843. The Polish Patent Office refused to grant the right of protection. The PPOo ruled that this designation is purely descriptive. It informs about the type of product and how it is produced, and while examined as a whole, this sign does not have any sufficient distinctive character in relation to goods for which it was filed. Therefore, it will not allow for the identification of the goods available on the market in terms of their origin. The PPO decided also that this sign is devoid of any characteristic features that may engrave into memory of the recipient and lead to the association with the entrepreneur, from which they originate. The recipient buying the goods bearing the sign in question will be informed about the characteristics of the product, not its origin. POLMOS claimed that „spirytus rektyfikowany” has acquired secondary meaning.

The PPO did not agree with the argument that a number of word-figurative trade marks containing the term “rectified spirit” that were registered for POLMOS supports the position that this trade mark has acquired secondary meaning, because all these trade marks were registered by the PPO because of its graphics and not the distinctive character of the disputed sign. The PPO concluded that the information on the secondary meaning posted on Wikipedia website can not be considered fully reliable evidence and Wikipedia cannot be treated as the professional source of information. The PPO noted that the fact that POLMOS was able to register the word mark “rectified spirit” in the United States has no impact on the examination of trademark application Z-204843, because the Polish system is completely autonomous. The PPO noted that even POLMOS is advertising its main product as a word-figurative trade mark, where both words are placed on the green-yellow label.

POLMOS filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in its judgment of 14 December 2009 case file VI SA/Wa 1859/09. POLMOS filed a cassation complaint.

The Supreme Administrative Court in its judgment of 18 May 2011 case file II GSK 553/10 dismissed the complaint. The Court cited the Dictionary of Polish language, published by PWN SA, the Internet edition, in which the word spirit is defined as a generic name of a specific type of alcoholic product – a high percentage water solution of ethyl alcohol. The word “rectified” is as an adjective derived from the noun “rectification” and it means the separation of liquid mixtures by repeated evaporation and condensation. The concept of rectification is commonly associated with a technological process, even if the recipient does not know the specific method. In conjunction with the first of the words in the trade mark in question it is associated with a way to produce a particular product. The two words – “rectified spirit” – contain only information about the type of product and how to produce it, and as such do not have sufficient distinctive character. The SAC shared in this regard the view expressed by the Supreme Administrative Court in its judgment of 18 June 2008 case file II GSK 185/08. See also “Trade mark law, case II GSK 185/08“. The Court ruled that there was no reason to assign a long use and the reputation only to the “rectified spirit” designation as separated from other elements of a word-figurative trade mark that was corresponding to the label on the bottle. The SAC noted that a trade mark is an indivisible whole. The use of a word-figurative trade mark does not mean that association between the word element and a particular entrepreneur arise in the minds of the consumer.

Trade mark law, case II GSK 269/10

August 5th, 2011, Tomasz Rychlicki

Polish company Przedsiębiorstwo Produkcji Lodów “KORAL” Józef Koral Spółka jawna from Limanowa, the owner of the word trade mark RED BLUE Z-277694 requested the Polish Patent Office to decide on the invalidation of the right of protection for the word trade mark RED BULL IR-708694 in part for goods in Class 30. KORAL claimed inter alia that the registration of the questioned trade mark was made in violation of Article 6(1) of 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, becasue goods in Class 30 are not subject to the activities of the Red Bull GmbH.

6.
(1) A trademark shall be registrable on behalf of a specific enterprise, but only in respect of goods falling within its field of economic activity.

On 15 December 2008, Red Bull informed the PPO that with effect from 5 December 2008, the Company renounced the protection of the questioned trade mark for goods in class 30 on the Polish territory. The PPO dismissed the request and noted that Red Bull GmbH is a limited liability company under the Austrian law. According to the registry of commercial activity, the company uses the Red Bull brand in the course of trade. In the opinion of the PPO, the Austrian law does not require further specification of the scope of the commercial activity of a company. The PPO has indicated that the minimum condition for which the entrepreneur must meet while applying for a trade mark in order to be grated the exclusive rights to that sign, is the intent of use. Such intent may be interpreted from the list of goods and services covered in the application and registration of the trade mark. KORAL filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 26 October 2009 case file VI SA/Wa 1263/09 dismissed the complaint and KORAL filed a cassation complaint.

The Supreme Administrative Court in its judgment of 13 April 2011 case file II GSK 269/10 dismissed the cassation. The SAC ruled that the Polish legislature adopted the law which implies that a trade mark may be registered if it’s related to the business activity of an entrepreneur and, therefore, that this is not property in itself, which can belong to anyone, but it is an intangible component of the company/enterprise, that serves to distinguis the goods or services from other goods and services of the same kind of other companies. The second of those conditions preclude the possibility of marking other goods than the goods covered by the activities of a company. There is no doubt that the product (or service) that is actually offered in the market by the company, is a commodity, which is the subject of its business.However, a trade mark can (and should) also be used for goods that are not currently offered. Therefore, some of problem of interpretation arises in the case of these goods (and services) that can be marketed by the company in the future. The SAC noted that the case law and legal doctrine adopted the view, that commodities which are the subject of a business activity will also be goods or services, what a company intends to introduce to the market in the future. Thus, the need arose to determine the criteria that would allow for the identification of the types of goods that are covered at the time of filing of a trade mark application (and consequently by the registration) by the intention of marking them in the future by that trade mark. Such intention is disclosed by identifying of the company activities in the appropriate register, because it is a public declaration of the entrepreneur on which fields of economic activities it intends to participate, or what kind of goods or services it will be offering on the market.

Trade mark law, case II GSK 611/10

July 12th, 2011, Tomasz Rychlicki

Tiffany & Broadway Inc. Div. of Texpol Corporation from Huston filed a cassation complaint against the judgment of the Voivodeship Administrative Court in Warsaw of 19 October 2009 case file VI SA/Wa 643/09. The VAC dismissed the complaint against the decision of the Polish Patent Office in which the PPO invalidated the right of protection for the word-figurative trade mark TIFFANY R-153644. The request for invalidation was filed by Tiffany & Co. from New York. The New York’s company claimed the similarity of signs and a breach of its over 150-years reputation applied to jewellery products.

R-153644

The Supreme Administrative Court in its judgment of 31 May 2011 case file II GSK 611/10 overturned the questioned judgment and sent the case back for reconsideration. The SAC ruled that the reputation of a trade mark is associated with its high distinctive ability, and such ability is weakened if more entrepreneurs are using the same or similar trade marks to designate their goods. The Court noted that the reputation is a matter of facts and the evidence suggesting that this sign could be well-known and considered to be attractive also in Poland, due to the popularity of Truman Capote’s book and the movie “Breakfast at Tiffany’s”, was not sufficient. What was also important is the fact that the SAC noted that cases between the same parties relating to trade marks with the word “Tiffany” were already the subject of recognition by this Court. See “Trade mark law, case II GSK 1110/08“, “Trade mark law, case II GSK 1111/08” and “Trade mark law, case VI SA/Wa 214/08“. Although there were similar arguments presented by the parties, each case brought before the SAC was related to the legality of separate and non-identical decisions. The VAC has to consider these differences, but the SAC also ruled that it would be advisable to take into account the views expressed in earlier judgments of the Supreme Administrative Court based on the background of similar cases between the same parties.

Personal data protection, case I OSK 1208/10

July 11th, 2011, Tomasz Rychlicki

Katarzyna S. had a website where she published information on breeding dogs. There was also another forum with such information. Grzegorz W. was a dog breeder and he noticed that his personal data and information on his breeding appeared on this websites. Some users posted also negative comments. Grzegorz W. requested the Inspector General for Personal Data Protection (GIODO) to issue an administrative decision ordering the removal of his personal data and all threads and posts connected with his name. He also requested the GIODO to check whether Katarzyna S. as a controller has registered the collection of personal data that was gathered during the operation of her website and the forum.

GIODO learned that the forum website was administered by another person who claimed that the questioned website had nothing to do with her professional activity, it was only a hobby. She never received any paid advertising, nor any funds from anyone. Moreover, she informed that the forum was removed from the net for several months. GIODO discontinued the proceedings. GIODO ruled that Katarzyna S. was not involved in the processing of personal data as a part of her business or professional activity. Jerzy W. filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 14 April 2010 case file II SA/Wa 2130/09 ruled that dogs breeding may be directed to gain profits, because it can be associated with the sale of dogs. The Court decided that GIODO should reconsider the case. GIODO filed a cassation complaint.

The Supreme Administrative Court in its judgment of 28 June 2011 case file I OSK 1208/10 overturned the questioned judgment and sent the case back for reconsideration. The SAC ordered the VAC to examine whether the processing of personal data on the internet website had something to do with breeding activities.

Trade mark law, case II GSK 466/10

July 5th, 2011, Tomasz Rychlicki

Aquatherm GmbH registered a single green color determined by RAL 150 60 40 as a trade mark IR-863506 for goods in Class 19 such as rigid pipes of polypropylene for the supply of drinking water and heating and air conditioning systems in houses, office buildings and industrial buildings. The Company sought the recognition of the protection of its trade mark on the territory of the Republic of Poland based on the provisions of the Madrid Agreement Concerning the International Registration of Marks.

IR-863506

On 11 July 2006, the Polish Patent Office transmitted to the International Bureau in Geneva a notification of the grounds which prevent the protection of an international trademark to be recognised on the territory of the Republic of Poland. The PPO decided that according to Article 120 of the Polish Industrial Property Law this trade mark cannot distinguish the goods, because it is a single color and it is devoid of sufficient distinctive character.

On 20 April 2007, the Patent Office sent a letter to the International Bureau with information concerning the correction of a clerical error in the notification dated 11 July 2006, informing that the provisional refusal to recognize the protection should include Article 129(1)(ii) and Article 129(2)(i) of the IPL and not Article 120 of the IPL. At the same time, the PPO did not consider the request of the Aquatherm GmbH to initiate an administrative hearing on the correction of this error. The PPO pointed out that the correction did not change the legal basis of the notification. The difference in the numbering of Articles 120 and 129 was a result of unfortunate, in this case, close arrangement of numbers 9 and 0 on the computer keyboard.

The Polish Patent Office in its decision of 9 May 2008 case DT-IR-863 506 refused to recognize the protection. Aquatherm GmbH filed a request for re-examination of the matter, but it was dismissed by the PPO in its decision of 10 June 2009 case PT-430/08 IR-863 506. The PPO did not agree with the Aquatherm GmbH that the registration on its behalf of the earlier trade marks such as IR-832895 or IR-837655 justifies the registration of the applied sign because each case is decided according to individual circumstances. The PPO held that it has not changed, as a result of correcting errors, the legal basis of the refusal.

Aquatherm GmbH filed a complaint against these decisions. The Company argued that the PPO infringed on Article 5(2) of the Madrid Agreement because it took its decision after the expiration of one year term that is calculated from the date of the international registration of the mark. The provisions that were used as the basis for refusal, were first indicated in the letter of 20 April 2007. Aquatherm GmbH argued also that the PPO mistakenly determined that the goods included in the list of goods and services are everyday consumer goods targeted for mass audiences, and that the green color is commonly used for the determination of water supply pipes, and aqueous solutions. According to the Company, the PPO has not made an exhaustive evaluation of the evidence, in particular, it completely ignored the key evidence submitted by the company in a statement of the Polish Corporation of Sanitary, Heating, Gas and Air-Conditioning Technology which included information on whether a given color may indicate the manufacturer
on the market of installations polypropylene systems, and whether the green color used as designation of pipes or installations allows the buyers to identify these products with Aquatherm GmbH.

The Voivodeship Administrative Court in its judgment of 3 December 2009 case file VI SA/Wa 1452/09 dismissed the complaint. The VAC held that the provisional refusal cannot be considered ineffective. According to the Court, the PPO indicated the grounds for refusal which was in accordance with the Rule 17 of the Common Regulations under the Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to that Agreement. The Court noted that in the case of color per se its concrete distinctive ability must be interpreted in the light of public interest, which is based on the rules of the limited reduction of the availability of colors for other entrepreneurs who offer goods or services of the same kind as the goods or services covered by the registration application. The basic function of the trade mark is to guarantee the final consumer or user the identity of the origin of the goods or designated services bearing the trade mark by letting them distinguish the goods or the service of goods or services of different origin. The distinctive character of the sign is based on such features which in the minds of consumers clearly indicate that a particular product bearing a given trade mark comes from the specific company. The VAC noted that in relation to the color per se, it is assumed that the existence of primary distinctive characteristic (without any prior use) is possible only in exceptional circumstances, especially when the number of goods or services for which the mark is applied for is very limited and when the relevant market is very specific. The Court noted that the green color in relation to the applied goods is not unusual. The VAC agreed with the PPO that, in the case of green color used for the pipes used for water flow, there is a risk that consumers will associate it with nature, therefore, it should not be monopolized by one company, in particular, that this shade of green RAL 150 60 40 is also not original.

Moreover, the VAC found that the Patent Office has rightly used the example of PN-70/N-01270 standards Guidelines for marking of pipelines. The standard recommends that the painting for the identification of pipelines made of carbon steel or other materials susceptible to corrosion should be coordinated with anticorrosive painting in which the topcoat should also fulfill the function of identification. It is customary to use green for water and chemical solutions that pose no chemical and thermal threat. The Court noted that the statement of the Polish Corporation of Sanitary, Heating, Gas and Air-Conditioning Technology could be helpful to support Aquatherm position, but also found that such a document can not be regarded as expert evidence under the provisions of Polish Administrative Proceedings Code or substitute evidence for opinion polls.

The Supreme Administrative Court in its judgment of 15 April 2011 case file II GSK 466/10 dismissed the cassation. The SAC agreed with the findings included in the judgment of the VAC and ruled that the provisional refusal to recognize the protection is, by its very nature, some kind of a general statement issued by an authorized body of the state that is the party to the Madrid Agreement, and it includes the grounds which prevent the protection of an international trademark to be recognized on the territory of the Republic of Poland. The reasons given in the notification of provisional refusal set the boundaries within which the Polish Patent Office then investigates the case and its matter. However, as it was mentioned, the notification is of a general (signaling) nature and it is clarified in a subsequent administrative proceedings. In the event of a dispute, the position included in the notification is subject to detailed examination by the administrative courts, reflecting inter alia the context of a trade mark application, the nature of the applied sign, etc. As a consequence, the reasons of a provisional refusal should be explained in general terms and take into account all the circumstances specified in the notification by the authority.

Personal interest, case I OSK 1217/10

July 4th, 2011, Tomasz Rychlicki

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

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

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

Copyright law, case I OSK 1975/10

June 13th, 2011, Tomasz Rychlicki

The Minister of Infrastructure did not respond to the request of a Polish company for disclosure of public information in the form of directory of multiple choice questions for the initial qualification tests for categories C1, C1 + E, C, C + E of driving license. The company filed a complaint of failure to act. The Voivodeship Administrative Court in Warsaw in its order of 25 August 2010 case file II SAB/Wa 150/10 dismissed the complaint. The Company decided to file a cassation complaint.

The Supreme Administrative Court in its order of 21 December 2010 case file I OSK 1975/10 dismissed it. The Court supported the view, in which an official document was correctly distinguished from an official documentary material. While the official document will be public information, the documentary material will not has such status, because it lacks formality/officiality features (it was not used by the official body in a given case and it was not directed outside that body). The court held that a set of questions would be used to carry out undefined tests, therefore, such questions are undoubtedly abstract in nature and do not constitute an official document. In this case, the company had not requested the disclosure of a particular form of the test – a set of questions used in a particular exam, and the subject of the request was entire collection of materials (a series of questions). In the opinion of the court such materials do not constitute public information under the Article 1(1) of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.

Article 1.1 Each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act.
2. The provisions of the Act shall not breach the provisions of other acts defining different principles and the mode of access to the information being public information.

The Court noted that only when these questions are used in a particular case, i.e. they are arranged, and used in a specific set of questions designed to check the level of knowledge of applicants for categories C1, C1 + E, C, C + E, they lose their abstract characteristic and become public information, however, such situation did not occur in this case.

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

Trade mark law, case II GSK 368/10

June 10th, 2011, Tomasz Rychlicki

The Polish Patent Office invalidated in part the right of protection for 100 R-156995 trade mark that was registered for Agencja Wydawnicza TECHNOPOL Spółka z o.o. for goods in class 16 such as posters, albums, almanacs, stationery, blocks, drawing blocks, brochures, magazines, charade journals, prints, forms, newspapers, calendars, calendars with tear loose, filing cards, cards, card-notices, postcards, comics, books, crossword puzzles, stickers, notepads, covers, stationery, bookmarks, drawing kits, notebooks. Technopol filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in Warsaw in its judgment of 7 December 2009 case file VI SA/Wa 1677/09. Technopol decided to file a cassation complaint.

R-156995

The Supreme Administrative Court in its judgment of 15 March 2011 case file II GSK 368/10 dismissed the complaint in part. The SAC held that the designation, which is in fact the number 100 is a highly informative sign for magazines and journals containing charades, and, as such may not be the monopolized by one entity that would like to use it for marking crosswords magazines. The Court noted also that adding to a trade mark any image does not yet give the sign a concrete distinctive character.

Personal data protection, I OSK 1086/10

June 3rd, 2011, Tomasz Rychlicki

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