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Advertising of pharmaceuticals, case II GSK 461/09

March 14th, 2010, Tomasz Rychlicki

The Main Pharmaceutical Inspector (MPI) found that Polish Federation for Women and Family Planning (in Polish: Federacja na rzecz Kobiet i Planowania Rodziny) is publishing the names of contraceptives on its Internet website, and therefore the Federation advertises these products. The MPI ordered the immediate cessation of such actions because it may encourages the use and prescription of such medical preparations and public advertisement of medicinal products as contraceptives, that are issued only on prescription, is prohibited by provisions of article 52(1) of the The Polish Act on Pharmaceutical Law – PHL – (in Polish: ustawa prawo famraceutyczne) of 6 September 2001, published in Journal of Laws (Dziennik Ustaw) of 2008, No 45, item 271, with later amendments.

Advertising a medicinal product shall mean any activity consisting in informing about and encouraging to use the medicinal product

The Federation filed a complaint to the Voivodeship Administrative Court (VAC) in Warsaw. The VAC in a judgment of 3 March 2009, case file VII SA/Wa 2108/08, has overturned the decision of the MPI, but only because the incomplete material was submitted. The VAC agreed that MPI’s decision was justified with regard to cessation of public advertisement of contraceptives. The Federation filed a cassation complaint.

The Supreme Administrative Cort (SAC) in a judgment of 10 March 2010, case file II GSK 461/09, ruled that the provisions of article 52 are legible and obvious, but they must relate to the circumstances of a particular case and to all reasons of actions taken in order to inform about the medicinal product. According to the SAC these circumstances were not considered and the VAC also omitted the statutory objectives of the Federation. The major role of the Polish Federation for Women and Family Planning is to inform of the various methods of family planning. Publishing the name of contraceptives, cannot be treated as an encouragement for its use. The information does not come from the responsible entity, and the publication of characteristics of medicinal products is not considered as advertising. If the order issued by the MPI was sustained, such information could not be published at all.

Therefore, the SAC annulled the questioned judgments of the Voivodeship Administrative Court and returned the case to the VAC for reconsideration.

Trade marks and taxes, case II FSK 1003/08

March 3rd, 2010, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 20 November 2009, case file II FSK 1003/08, confirmed the rule that the Polish taxpayer is allowed only for the depreciation of the registered trade mark. This judgment was based on provisions of article 16b(1)(6) of the Polish Act of 15 February 1992 on legal persons’ income tax – LPIT (in Polish: Ustawa o podatku dochodowym od osób prawnych) consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654 with subsequent amendments.

The following intangible assets, acquired and fit for commercial use as at the date of acceptance for use, shall be depreciated, subject to Article 16c:
(6) rights to: inventions, patents, trade marks, designs.

The SAC ruled that the priority to obtain the right of protection for a trade mark which is determined according to the date of filing of a trademark application with the Polish Patent Office (PPO) is something different than the possibility of introducing such a right in the records of intangible assets, which is allowed by the LPIT only after the PPO issued a positive decision on the grant of a right of protection for a trademark. Such a decision is always taken after having established that the statutory requirements for the grant of the right have been satisfied. Having only a priority does not guarantee such situation will take a favourable turn.

See my earlier post entitled “Poland: depreciation for registered trade marks only“.

Trade mark law, case II GSK 214/09

March 3rd, 2010, Tomasz Rychlicki

This is a continuation of the story described in a post entitled “Trade mark law, VI SA/Wa 1000/08“. Les Laboratoires Servier from France filed a cassation complaint. The Supreme Administrative Court in a judgment of 16 December 2009, case file II GSK 214/09, ruled that the sign GLAZIDE is representing a creative transformation of the name of an active ingredient (AI) called gliclazidium (gliclazide) that was proposed by the WHO. GLAZIDE has the distinctive character because it is a fanciful sign and it does not constitute either a name of a generic product, or the International Nonproprietary Name of the active substance of the Latin Gliclazidum (English: Gliklazide, Polish: Gliklazyd), nor does it directly inform about the characteristics (properties) of goods. Therefore, the SAC rejected the complaint.

Industrial design, case II GSK 323/09

February 23rd, 2010, Tomasz Rychlicki

A company filed a notice of opposition to a final decision of the Polish Patent Office (PPO) on the grant of a right in registration for the industrial design “Zadaszenie drzwi” (in English: door canopy) Rp-9198. The opposition has been filed under the provisions of article 102(1), article 103(1), article 104(1) and (2) and article 106(1) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, 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 later amendments.

Article 102
1. Any new and having individual character appearance of the whole or a part of a product resulting from the features of, in particular, the lines, colours, shape, texture or materials of the product and its ornamentation, shall constitute an industrial design.
(…)
Article 103
1. An industrial design shall be considered new if, before the date according to which priority to obtain a right in registration is determined and subject to paragraph (2), no identical design has been made available to the public, i.e. used, exhibited or otherwise disclosed. Designs shall also be deemed to be identical with those made available to the public if their features differ only in immaterial details.
(…)
Article 104
1. An industrial design shall be considered to have individual character, if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available before the date according to which priority is determined.

2. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.
(…)
Article 106
1. Rights in registration shall not be granted for industrial designs whose exploitation would be contrary to public order or morality; exploitation of an industrial design shall not be considered to be contrary to public order merely because it is prohibited by law.

The opposing party claimed the lack of novelty becuse the disputed design was disclosed inter alia during the exchange of correspondence with the owner and the lack of the individual character of a product. The PPO rejected the opposition and ruled that the industrial design is new. While referring to the cooperation between the opposing company and the owner, the PPO noted that the disclosure of a design was only approved between both parties. The PPO concluded that the industrial design in question was not disclosed publicly. In the proceedings before the PPO and the courts no other evidence with regard to public disclosure of the design was submitted.

The Voivodeship Administrative Court in a judgment of 19 November 2008, case file VI SA/Wa 1767/08 rejected the complaint against the decision of the PPO. The Supreme Administrative Court in a judgment of 20 January 2010, case file II GSK 323/09, rejected the cassation complaint. The SAC held that any correspondence, not only commercial, bears the characteristics of confidentiality due to the fact that by its nature it is addressed to the designated entity, and refers the specific content associated with a certain confidence on the part of the sender. Its publication requires the consent of both parties. Therefore, it coould not be argued that the disclosure of a new design could take place in the correspondence between the two businesses working together.

The cassation complaint also presented the argument of “exceeding the principle of formality”. The Court found it unjustified based on provisions of articles 255¹ and 256 of the IPL.

Article 255¹
1. Litigation proceedings in the cases referred to in Article 255(1)(i)-(viii) shall be initiated at a written request.

2. A request for initiation of a proceeding shall be subject to payment of a fee.

3. A request shall contain:
(i) identification of the parties and their addresses
(ii) brief presentation of the case
(iii) clear definition of the decision sought
(iv) reference to the legal ground
(v) indication of evidence
(vi) signature of the requesting party and a date

4. The request shall be accompanied by:
(i) a power of attorney, where the request is submitted by the representative
(ii) copies of the request in a number corresponding to the number of the parties to the litigation proceeding
(iii) a receipt for the payment of the fee referred to in paragraph (2).

5. The Patent Office shall check whether the request for initiation of a litigation proceeding satisfies the formal requirements referred to in paragraphs (3) and (4).

6. Where the request fails to satisfy the formal requirements, the Patent Office shall invite the requesting party to remove the defects, under pain of discontinuance of the proceeding, within 30 days.

(…)

Article 256
1. The provisions of the Code of Administrative Procedure shall apply accordingly to litigation procedure before the Patent Office in cases not regulated by this Law..

2. To costs of proceedings the provisions applied in civil law proceedings shall apply accordingly.

3. The provisions of the Code of Administrative Procedure governing re-examination, at a party’s request, of cases, in which decisions not liable to appeal were taken, shall not apply to decisions on merits taken after hearing.

3¹. The cases referred to in Article 2553(2) may be requested to be re-adjudicated. A time limit for submitting a request shall be, in case of a decision made – two months and in case of an order issued – one month from the date of the decision or the order being served upon the party.

The proceedings before the Polish Patent Office are reduced of principles set out in the of the 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, including the principle of formality, or the principle to watch over the interests of the parties by the public administration bodies. Because of the adversarial proceedings, the party has to prove the circumstances from which it derives the legal consequences that are more favorable.

This judgment concerned the industrial design “Zadaszenie drzwi” (in English: door canopy), Rp-9198.

Wzór Przemysłowy Rp-9198

See also my posts entitled “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Who is the controller in social networking sites?

February 14th, 2010, Tomasz Rychlicki

The question of who is the “controller” and the differences between a “controller” and “processor” as defined in the article 2(d) and (e) of the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, in the context of social networking sites (SNS), are at least controversial not only in Polish case law. See for instance T. Zeggane, W. Maxwell, US and EU Authorities Review Privacy Threats On Social Networking Sites, Ent. L.R. 2008, 19(4), 69-74.

The second area requiring clarification is the concept of “data controller” in an SNS environment. Under European privacy law, the controller is the entity which determines the purposes and means of the processing of personal data. In an SNS context, there are two broad categories of data: the information that the user provides to the SNS platform to register (such as the user’s real name and email address), and the data that the user uploads onto his or her profile. The former is personal data which the SNS platform controls. The latter is “user generated content”, which the user controls and can choose to share (or not) with others. Some SNS platforms provide the user with tools to control the extent to which information such as photos, personal tastes and the like are used to develop targeted advertising. Where such tools exist, the argument can be made that the user (and not the SNS platform itself) is the “controller” of the content the user uploads onto the profile. The concept of data controller is the cornerstone of European privacy law. The concept of controller as it is traditionally interpreted does not fit easily into the SNS environment, where the user is the focal point

As you can read from the above, the authors suggest that the situation requires a clarification of the concept of “controller” in terms of SNS. A similar view was also presented in the report of the European Network and Information Security Agency (ENISA), “Security Issues and Recommendations for Online Social Networks“, PDF file, p. 25.

See also my earlier posts entitled “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

Personal data protection, case I OSK 667/09

February 13th, 2010, Tomasz Rychlicki

On 15 January 2008, Tomasz W. filed with the General Inspector for Personal Data Protection (GIODO) a complaint concerning an unauthorized processing of personal data carried out by the Polish company Nasza Klasa Sp. z o.o. from Wroclaw, the owner of nasza-klasa.pl website. He informed the GIODO, that this very popular Polish website on classmates, hosts a photo featuring his image together with a list of names of other photographed people attached to it. Tomasz W. has repeatedly appealed to the website administrators with the request to remove his name from the list. However, he received no response from Nasza Klasa company.

As a result of the investigation, the GIODO found that on 31 December 2007, a registered user of nasza-klasa.pl posted classmates’ photo featuring students of a primary school. On the same day, another registered user, placed the names of people who were portrayed at the photograph – including the name and surname of Tomasz W. On 2, 9 and 14 January 2008, Tomasz W. requested Nasza Klasa Sp. z o.o. the removal of his personal data.

In a decision of 27 May 2008, case file DOLiS/DEC-314/08/13239, the GIODO, relying on the provisions of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with later amendments, ruled that information on the applicant’s full name, school and class to which he attended, together with his image, are personal data and the data collector is Nasza Klasa Sp. z o.o.

However, the GIODO also ruled that it should be borne in mind that according to the provision of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usłóg droga elektroniczną), Journal of Laws (Dziennik Ustaw) No. 144, item. 1204, as amended, Nasza Klasa sp. z o.o. provides electronic services for registered users of the portal website, consisting of the storage of data of these users in the computer system. This activity is the condition to legalize the processing of personal data in accordance with article 23(1) pt. 5 of the PPD. In addition, the GIODO found that in this case the applicant’s rights have not been violated, because the access to its data was limited to a group of people registered on nasza-klasa.pl website.

Tomasz W. asked the GIODO for the retrial. He pointed out that the reasons for the decision have many contradictions, inconsistencies and is ambiguous. He accused the GIODO of laconic and cursory treatment of his case. He again emphasized that his personal data have been published on the nasza-klasa.pl website without his knowledge or consent, in violation of his civil rights and liberties.

After the rehearing of the case, the GIODO annulled the contested decision, and discontinued the proceedings. GIODO claimed that the re-examination of the case leads to the conclusion that the disputed information about Tomasy W. did not fall within the definition of personal data. The name and surname have been given under his old image from many years ago. Hence, the combination of photos from the past, with a name and surname of a person and a primary school, which such person attended did not allow for the identification of a person without excessive costs and time. The findings that the disputed information is not personal data within the meaning of the PPD caused the proceedings in the matter to be groundless and on the basis of article 105 § 1 of the APC, it had to be discontinued.

Tomasz W. lodged a complaint with the Viovodeship Administrative Court (VAC) in Warsaw. The complainant asked for annulment of the decision of first and second instance. Tomasz W. claimed the violation of the substantive law, i.e. article 6(1) of the PPD, through its improper interpretation, of article 32(1) pt 7 and 8 of that Act, by recognizing that Tomasz W. is not entitled to request cessation of the processing of his data and the right to object, and a breach of article 7 of the APC by not explaining all the relvant facts. Tomasz W. disagreed with the statement of the GIODO that questioned information about his person is not personal data within the meaning of the PPD. He stated that any information about an identified or identifiable individual is personal data. Furthermore, he argued that the claim of the GIODO that the data are available only for specific people – registered users of the portal is not acceptable, because nasza-klasa.pl has no mechanisms for verification of users identity, which makes the questioned data easily accessible for everyone. Moreover, Tomasz W. also argued that a registered user who does not know him would have some difficulty in identifying his person but such obstacles would not happen to a person who knows about Tomasy W., and is looking for additional information.

The Voivodeship Administrative Court in a judgment of 3 March 2009, case file II SA/Wa 1495/08, ruled that the GIODO erred in its decisions, because information about the name and surname of Tomasz W., combined with information about the name and address of the primary school and the determination of the class to which he attended in 1978/79, even if it was thirty years ago, are personal data. According to the Court provisions of article 1 of the PPD introduced the principle of autonomy of human information, meaning the protection of information about human being. This provision is a kind of emanation of the general right guaranteed by the Polish Constitution in article 47, according to which “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life”. This means that the protection of personal data is related to the protection of privacy rights. This follows from the wording of article 6 of the PPD, indicating that the personal data concern identified or identifiable natural or legal person and that the identifiable is a person is one whose identity can be determined. From wording of that provisions the VAC concluded that personal data are data that identify a person’s identity.

VAC also relied on the content of recital 12 of the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which emphasized the protection of all data relating to a person, and therefore also information about someones past.

(12) Whereas the protection principles must apply to all processing of personal data by any person whose activities are governed by Community law; whereas there should be excluded the processing of data carried out by a natural person in the exercise of activities which are exclusively personal or domestic, such as correspondence and the holding of records of addresses

However, in recital 26 of the abovementioned Directive states that data protection rules must apply to any information concerning an identified or identifiable person. In order to determine whether a person is identifiable, all the means which can be used by the controller or any other person to identify a person, should be taken into the account. The rules of data protection do not apply to data rendered anonymously in such a way that a subject of the data can not be identified. The identification of a given person concerns also past information about a specific human being, by which information one can learn about such person’s identity. Accordingly, the VAC held that European law means the protection of personal data as the protection of all the facts concerning the past of a particular person, which corresponds with the content of article 6(2) of the PDP. So this means that such data would also be protected.

Referring to the foregoing facts of Tomasz W. case, the VAC ruled that that nasza-klasa.pl website published his image and name. In the opinion of the court these are the personal data which are protected by the PPD, because on their basis one is able to identify given person.

Nasza Klasa sp. z o.o. filed a cassation complaint with the Supreme Administrative Court (SAC) challenging in entirety the judgment of the VAC. The Supreme Administrative Court in a judgment of 18 November 2009, case file I OSK 667/09, rejected the complaint.

The SAC held that the primary issue arising in this case was whether a classmates’ picture that was taken thirty years ago, at which Tomasz W. is potrayed, in the circumstances of the case, can be analyzed to determine his identity without necessarily involving excessive resources or time, and therefore, whether the data disclosed in the photo in question, constitutes personal data within the meaning of article 6 of the PPD, and whether it should be protected.

The concept of “personal data” on the Polish law includes any information concerning an individual if it is possible to define its identity and its identification. Personal data is a set of messages about a particular person such integrated that it allows for its individualization. It includes at least information necessary for identification (name, surname, place of residence), but this is not restricted, because it also include further information, strengthening the degree of identification. Such information will also include pictures of the individual, even if they were taken in the past, allowing to identify a person. In a situation where such a photograph is presented with a name and surname of the person portrayed, in a place accessible to an unlimited number of entities, it must be considered that it constitutes personal data subject to protection under the PPD. Mainly, the objective evaluation criteria decides for the qualification of given information as personal data, but it also should comprise of all information, including extralinguistic (context), to which third party may have or has an access. A different approach to the presented issues would maginalize the importance of the laws and it would not relate to its designated function.

Thus it should be considered that the image of Tomasz W. portrayed at the photograph that was taken 30 years ago, affixed with the class, his name and surname, and then published at nasz-klasa.pl website constitutes personal data within the meaning of article 6(2) of the PPD, and the cassation complaint was not justified. The SAC also noted that the consent for the processing of personal data cannot be in any way implied.

The SAC also stressed the fact the Internet as a source of information is increasing on a unknown scale and importance. It provides an access to specific information to a vast number of persons and allows for any of its processing within the meaning of the PPD. At the same time there are not yet developed appropriate mechanisms for the protection of individual rights when those rights have been violated as a result of the disclosure of information on the Internet. Then, it is a great role of law enforcement bodies, including the Inspector General for Personal Data Protection in creating practice to comply with applicable laws also on the Internet. It is an unacceptablr situation in which the entity seeks to remove its image from a particular website, and the administration fails to take action to ensure the protection of civil rights. The image is one of the very personal property rights and lack of consent to its publication, if it is not a public person, is a sufficient reason to believe that regulations of the PPD apply, if the conditions set in the article 6(2) of the PPD have been met.

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

Industrial design, case II GSK 772/09

February 4th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw received two different complaints against the same decision of the Polish Patent Office (PPO) on the invalidation of the right in registration. The Court decided on both complaints and issued the resolution of 16 April 2009, case file VI SA/Wa 443/09, the parties in this case were the PPO and a Polish joint-stock company from Bydgoszcz (legal entity), and the resolution of 23 June 2009, case file VI SA/Wa 715/09, the parties in this case were Jan Romanik (natural person) and the PPO. The VAC rejected the complaint in the second case and hold that there exist the identity between case VI SA/Wa 443/09 and VI SA/Wa 715/09.

Jan Romanik brough a cassation complaint to the Supreme Administrative Court. The SAC in a decision of 9 December 2009, case file II GSK 772/09, ruled that the violation of law made by the VAC was based on a wrong assumption that the resolution case file VI SA/Wa 443/09 was related (the so-called “case sameness”) to VI SA/Wa 715/09, namely, because the case fell within the action between the same parties, which was the subject of the same decision of the Polish Patent Office.

Even if the natural person was the sole shareholder in the joint-stock company, both entities cannot be identified as one, because these are participants of legal transactions that are independent from each other and each of them acquire the rights and duties on its own behalf.

This judgment concerned the industrial design “Łopata” (in English: shovel) Rp-9834.
Wzór Przemysłowy Rp-9834

See also my post entitled “Polish case law on industrial designs“.

Tax law, case II FSK 1182/08 – computer software is not literary work

February 4th, 2010, Tomasz Rychlicki

A Polish company was purchasing rights to use of computer software from companies established in Ireland. The company has paid royalties to non-resident as defined in article 3 of the Polish Act of 15 February 1992 on legal persons’ income tax – LPIT (in Polish: Ustawa o podatku dochodowym od osób prawnych), consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654, with subsequent amendments.

Art. 3. 1. Taxpayers, if their seat or head office is in the territory of the Republic of Poland, shall be liable to pay tax on the entirety of their income regardless of where they have been generated.
2. Taxapyers who do not have a seat or head office in the territory of the Republic of Poland, shall be liable to pay tax only on income generated in the territory of the Republic of Poland.

According to the Polish company, the payment of remuneration to a foreign contracting party for the use of computer software is not royalty and it is not subject to income tax in Poland. Accordingly, the Polish company is not obliged to pay the tax under article 21(1) of the LPIT.

Art. 21. 1. Income tax on revenues derived in the territory of the Republic of Poland by taxpayers, referred to in Article 3.2:
1) from interest, from copyright or related rights, from rights to inventions, trademarks and ornamental designs, including also from selling those rights, from fees for disclosing the secrets of a technique or a production process, for the use or the right to use industrial, commercial or scientific equipment, including vehicles, and for information related to the experience acquired in industry, commerce or science (know-how);

2) from charges for services in the area of performances, entertainment or sports, performed by natural persons domiciled abroad, and organized through natural persons or legal persons conducting commercial activities related to artistic, entertainment or sport events in the territory of the Republic of Poland;
(…)

2. The provisions of paragraph 1 shall apply with account being taken of double taxation avoidance agreements, to which the Republic of Poland is a party.

The Polish company is also not obliged to collect lump income tax as defined in article 26(1) of the LPIT.

Legal persons and unincorporated organizational entities and natural persons operating as entrepreneurs, who pay out the amounts due under titles specified in Article 21.1 and in Article 22, shall be obliged, as withholding agents, to collect, subject to paragraph 2, lump income tax on those payments as at the date thereof. However, application of the tax rate arising from a relevant agreement on avoidance of double taxation or waiving tax collection in accordance with such agreement is possible providing the place of residence of the taxpayer has been documented for tax purposes by a certificate (certificate of residence) issued by a competent tax administration authority.

The company asked the Polish Minister of Finance to issue the interpretation on the question whether if it pays to foreign contracting parties the fee for the right to use the software, is it obliged to collect a lump income tax, in accordance with article 12 of the Agreement of 13 November 1995 between the Government of the Polish Republic and the Government of Ireland on avoidance of double taxation and prevent tax evasion on income tax, Journal of Laws (Dziennik Ustaw) of 2000, No. 53 item. 650.

In the order issues of 2 October 2007, the Minister of Finance did not agree with the aforementioned statement of the Polish company. By its decision of 21 October 2007, the Minister refused to annul the order of 2 October 2007. According to the Minister of Finance, international copyright agreements and treaties such as the Berne Convention and the TRIPS include the concept of computer programs being literary works which, in conqequence, allows to extend this rule to all norms/regulations of international law, including the provisions of article. 12, paragraph. 3a of the Agreement.

In the complaint brought before Voivodeship Administrative Court (VAC) in Warsaw, the company, requested the Court to annul the decision of the Minister of Finance because it was taken based on the misinterpretation of article 12 of the Agreement. In support of the complaint the Company claimed that the royalties associated with the purchase of software should be taxed in accordance with article 7, paragraph. 1 of the Agreement – only in the State where the entity obtaining such income as “business profits” is seated.

The VAC in a judgment of 4 April 2008, case file III SA/Wa 2153/07, agreed with the interpretation provided by the Polish company and annuled both the order and the decision. The Minister of Finance brought a cassation complaint to the Polish Supreme Administrative Court (SAC).

The SAC in a judgment of 13 January 2010, case file II FSK 1182/08 held that a computer program is not a literary work. Such interpretation based on article 1 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 later amendments, is the unacceptable extensive interpretation of the tax law.

Chapter 1
Subject Matter of Copyright
Art. 1.-1. The subject matter of copyright is any expression of creative activity having individual character and manifested in any material form, regardless of the value, intended purpose and manner of expression thereof (work).
2. The subject matter of copyright includes the following in particular:
(1) works expressed in words, mathematical symbols or graphic signs (literary, advertising, scientific and cartographic works and computer programs),

For this reason, the SAC ruled that the payment for the use of computer software is not subject to taxation of royalties that shall be paid at the source of income. This interpretation was made in accordance with the Polish-Irish Agreement.

Industrial design, case II GSK 238/09

January 27th, 2010, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 16 December 2009, case file II GSK 238/09, ruled that the essential features of the industrial design, are these characteristics that determine the overall impression that the design produces on the informed user. These are features of the shape/appearance which serve as a basis for identifying, distinguishing the design from other, already known designs. The forms of the industrial design differ (otherwise there would be no forms). But these differences include irrelevant features, i.e. those which do not affect the overall impression. The essential features, that decide on the overall impression are common for all forms of an industrial design. Forms of industrial design that are put in one application which are also having the essential features common, differ from each other only by features that are irrelevant. These forms are identical as defined in article 103(1) – second sentence – of the IPL.

Designs shall also be deemed to be identical with those made available to the public if their features differ only in immaterial details.

This means that if some of the forms of the industrial design had already been made public, and lost its novelty, other forms, differing from them only by insignificant details, do not have the novelty characteristic, because they are considered by the law as identical, which means, they are devoid of the individual characteristic.

This judgment was issued on the basis of the cassation complaint brought from the judgment of the Voivodeship Administrative Court (VAC) in Warsaw, of 11 December 2008, case file VI SA/Wa 1827/08. The judgment of the VAC was reported in my post entitled “Industrial design case VI SA/Wa 1827/08“.

This judgment concerned the industrial design “Zadaszenie drzwi” (in English: door canopy), Rp-9201.

Wzór Przemysłowy Rp-9201

See also my post entitled “Polish case law on industrial designs“.

Polish case law on e-access to public information

January 21st, 2010, Tomasz Rychlicki

Below, you will find a list of judgments on e-access to public information. By “e-access to public information” I mean all issues related to obtaining public information through or with the help of IT technology. You can find a more detailed discussion on each judgment under the link provided with the case file. All judgments are given in chronological order.

- The judgment of the Regional Court Katowice Wchód in Katowice of 27 April 2010, case file I C 19/10.

- The judgment of the Voivodeship Administrative Court (VAC) in Szczecin of 16 December 2009, case file II SAB/Sz 148/09.

- The judgment of the Voivodeship Administrative Court in Warsaw, case file II SAB/Wa 57/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 10 December 2007, case file II SAB/Wa 86/07.

The Polish TIFFANY’s trade marks saga continues

January 13th, 2010, Tomasz Rychlicki

Some time ago, I reported in posts entitled “Poland: Tiffany fought with Tiffany” and “Poland: cross-border reputation” about two American companies that were disputing trade marks with a TIFFANY element before the Voivodeship Administrative Court (VAC). The New York’s company argued inter alia that use of TIFFANY trade mark for goods such as footwear is a parasitic activity that uses another’s trade mark reputation and is bringing undue financial benefit to the holder of national registrations. The Company also stressed the fact that its trade mark is subject to protection under article 8 of the Paris Convention.

The VAC in a judgment of 24 July 2008, case file VI SA/Wa 238/08, dismissed Tiffany & Broadway Inc. Div. of Texpol Corporation’s appeals against the Polish Patent Office (PPO) decision of 19 March 2007, case files Sp. 68/04 and Sp. 69/04, regarding the cancellation of the right of protection for word-figurative trade marks: TIFFANY R-128063 and “Tiffany & Broadway Inc.” R-128064 which were registered in class 25 for shoes. The VAC ruled that the application for the protection of the TIFFANY mark for goods in class 25 was contrary to the principles of social coexistence because it caused the risk of weakening the reputation of the trade mark. Given the fact that the shoes are cheap and readily available, there is a risk of dilution of the reputation of TIFFANY trade mark and it may lead to lose its attractiveness among the exclusive clientele of goods bearing this mark.

The company filed a cassation complaint to the Supreme Administrative Court (SAC). The Supreme Administrative Court in a judgment of 8 July 2009, case file II GSK 1110/08 ruled that the reputation of a trade mark is associated with its highly distinctive character. One could say that a reputed trade mark is the one that has a high ability to automatically trigger associations with the product for which it was registered. It is quite obvious that this ability will be weaker, adequately to the number of cases of using the same or similar trade mark as a designation of other goods that are originating from other entrepreneurs. With regard to the plea of weakening (the dilution) of the reputation of the Tiffany trade mark, i.e. weakening its individuality, based on the ability to cause the automatic association with the goods marked by this sign, such effects are also caused by unquestioned by the Court numerous registrations of identical or similar trade marks for other entrepreneurs for various other goods, as well as the use of this sign the name of very different businesses.

The SAC in a judgment of 8 July 2009, case file II GSK 1111/08 ruled that 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 later amendments, do not explicitly provide for any special protection for unregistered reputed trade marks. However, the doctrine and the Polish case law have already accepted the concept, that such protection could be provided under article 8(1) of the TMA.

A trademark shall not be registrable if:
1) it is contrary to law or to the principles of social coexistence;

In particular looking at the circumstance of “a trade mark conflicting with the principles of social coexistence”, from the subjective perspective – it was commented that, the “contradiction/variance with the principles of social coexistence” may concerning the conduct/behavior of the applicant. On the basis of such conclusions, the registration of a sign for the goods of another kind, if the registration was intended to use the reputation of another’s trade mark or it was a threat of such reputation, was excluded. A trade mark application that was filed contrary to the principles of social coexistence, was an application made in bad faith. The absolute grounds/obstacles that are provided against the registration of the mark as defined in article 8(1) of the TMA do not directly refer to the relationship between the sign that was applied for and any other competing trade mark, however, in accordance with the accepted interpretation of that provision, in case of the infringement of the rules of social coexistence, the obstacle could be the inappropriate behavior on the applicant (its actions done in bad faith). The assessment of applicant’s actions, who was motivated by the desire to use another’s trade mark reputation, should therefore be also varied according to circumstances of its motivation and, not only related to the trade mark itself.

The application for the right of protection for a trade mark that was made with the intent to use another trade mark’s reputation should be judged as an application that was made with the breach of the rules of social coexistence (application made in bad faith), regardless of whether it concerns a reputed registered trade mark or unregistered reputed trade mark.

The Polish case law, for instance the Supreme Administrative Court in its judgment of 9 May 2008, case file II GSK 506/07, that was previously reported in the post entitled “Trade mark law, case II GSK 506/07“, already established the rule that in a case of famous trade mark and its reputation, besides its recognition, it must be also characterized by the following characteristics:

market share/participation (both quantity and value of sold goods),
range and long-lasting of an advertisment of the product bearing a trade mark,
territorial and temporal range of use,
licences granted for trade mark use, quality of goods bearing a trade mark,
value of a given sign in assessment of an independent financial institution,
size and extent of expenditures spent on promotion of a mark,
the relationship on prices of substitute goods,
if (and to what extent) the mark is used by third party.

The SAC also noted that the Community case law provides several fundamental conditions for the recognition of a trade mark as a reputed one. These are:

knowledge of the trade mark by a significant group of customers,
the contribution of the trade mark in the market,
intensity and geographic scope of the use,
intensity matching of goods with the trade mark,
the size of expenditures on advertising and promotion of the trade mark.

The SAC cited inter alia the judgment of the Court of Justice of the UE of 14 September 1999 in case C-375/97, General Motors and the judgment of the Court of First Instance of 13 December 2004 in case T-8/03, El Corte Ingles and the CFI’s judgment of 25 May 2005 in case T-67/04, Spa Finders.

It is also clear that the reputation of a trade mark must be assessed and established in the country in which the protection is sought. If one would like to qualify a given trade mark as a reputed one in the Republic of Poland, then the argument of the international reputation of a trade mark is not sufficient. The basic circumstance for the recognition of the reputation of a sign in a specific country is to show by a person who is invoking this argument, the market share in terms of both quantity and value of goods sold.

The SAC held that provisions of the First Directive 89/104/EEC of 21 December 1988 do not preclude the possibility of granting the protection to unregistered reputed trade marks under the national law. Just to keep it in order, it is worth adding, that the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments, provides in article 132(2)(iii)

2) A right of protection for a trademark shall not be granted, if the trademark:
(iii) is identical or similar to a renown trademark registered or applied for registration with an earlier priority (provided that the latter is subsequently registered) on behalf of another party for any kind of goods, if it without due cause would bring unfair advantage to the applicant or be detrimental to the distinctive character or the repute of the earlier trademark. The above provision shall apply to well-known trademarks accordingly.

for the protection of registered trademarks to the extent of the wording of article 4(4)(a) of the Directive. The trade mark application that was made in bad faith shall be rejected based on the absolute ground for refusal of protection based on provisions of article 131(2)(i) of the IPL.

2. A right of protection shall not be granted for a sign, if:
(i) it has been applied for protection with the Patent Office in bad faith,

The SAC ruled that the provisions of article 4(4)(a) of the Directive cannot be interpreted as the maximum limitation for the protection of famous marks in the national law and it would be difficult to follow the arguments that the First Directive 89/104 is an example of the so-called “complete harmonization” citing the judgment of the Court of Justice of the European Union of 9 January 2003 in case C-292/00, Davidoff & Cie S. A.

According to the SAC, the court of first instance (VAC) wrongly assumed the bad faith of the applicant and it did not consider the fact that the applicant has conducted its business in Poland since 1990 with the use of the mark, and after about five years of its activity, the company applied for the registration of the mark. These circumstances certainly were not indifferent to assess the intentions and purposes of the applicant so the VAC should address them in the grounds of the appeal.

When deciding on the interpretation of article 8(1) of the TMA, which allows for the protection of not registered reputed trade marks in Poland, it should be also noted, that such protection have a special character because it applies to unregistered marks, and it is an exception to the principle of protecting industrial property rights by the registration process. This requires preserving much care, so that without proper justification, would not depreciate the importance of registering trade mark and it would not reduced the registration to a purely formal procedure that has no importance.

Therefore, the SAC annulled both questioned judgments of the Voivodeship Administrative Court and returned to the VAC for reconsideration in accordance with the conclusions reached and ordered the Polish Patent Office to pay Tiffany & Broadway Inc. Div. of Texpol Corporation 1200 PLN as reimbursement of costs of the cassation compliant.

Polish case law on industrial designs

January 12th, 2010, Tomasz Rychlicki

Below, you will find a list of judgments on industrial designs that were decided upon in administrative proceedings. Finding cases that are decided upon in civil proceedings is more problematic becasue they are rarely available to general public. You can find a more detailed discussion on each judgment under the link provided with the case file. All judgments are given in chronological order.

- The judgment of the Voivodeship Administrative Court (VAC) in Warsaw of 16 June 2010, case file VI SA/Wa 134/10. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Voivodeship Administrative Court in Warsaw of 27 May 2010, case file VI SA/Wa 506/10. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Voivodeship Administrative Court in Warsaw of 26 February 2010, case file VI SA/Wa 34/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Voivodeship Administrative Court in Warsaw of 23 February 2010, case file VI SA/Wa 1038/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Supreme Administrative Court of 20 January 2010, case file II GSK 323/09.

- The judgment of the Supreme Administrative Court of 16 December 2009, case file II GSK 238/09. This judgment was issued on the basis of the cassation complaint brought from the judgment of the Voivodeship Administrative Court in Warsaw, of 11 December 2008, case file VI SA/Wa 1827/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 15 December 2009, case file VIII SA/Wa 332/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The decision of the Supreme Administrative Court of 9 December 2009, case file II GSK 772/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 19 November 2009, case file VI SA/Wa 703/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Voivodeship Administrative Court in Warsaw of 13 November 2009, case file VI SA/Wa 1376/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 9 October 2009, case file VI SA/Wa 189/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 29 September 2009, case file VI SA/Wa 211/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 19 August 2009, case file VI SA/Wa 664/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 10 June 2009, case file VI SA/Wa 498/09

- The judgment of the Voivodeship Administrative Court in Warsaw of 21 July 2009, case file VI SA/Wa 518/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 8 June 2009, case file VI SA/Wa 536/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 2 June 2009, case file VI SA/Wa 502/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 4 April 2009, case file VI SA/Wa 109/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 4 February 2009, case file VIII SA/Wa 332/08.

- The judgment of the Supreme Administrative Court of 27 January 2009, case file II GSK 612/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 11 December 2008, case file VI SA/Wa 1827/08. The cassation compliant bought before the Supreme Administrative Court was rejected in a decision of 16 December 2009, case file II GSK 238/09.

- The judgment of the Voivodeship Administrative Court of 21 November 2008, case file VI SA/Wa 710/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 4 November 2008, case file VI SA/Wa 1053/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 11 August 2008, case file VI SA/Wa 1088/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 10 June 2008, case file VI SA/Wa 543/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 4 November 2008, case file VI SA/Wa 1054/08.

- The judgment of the Supreme Administrative Court of 20 March 2007, case file II GSK 277/06, published in the electronic database LEX, under the no 321283.

- The judgment of the Supreme Court – Civil Chamber of 23 October 2007, case file II CKS 302/07.

- The judgement of the Voivodeship Administrative Court in Warsaw of 11 October 2007, case file VI SA/Wa 1215/07.

See also “Polish regulations on industrial designs“.

Polish regulations on personal data protection

January 11th, 2010, 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 personal data protection in the Republic of Poland are the following.

I.A. Substantive law

The Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of October 29, 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of July 6, 2002, No. 101, item 926, with later amendments.
The Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with later 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 later amendments.
Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, Journal of Laws (Dziennik Ustaw) No. 43, item 296, with later amendments.

I.C. Case law
See “Polish case law on personal data protection“.

I.D. 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 judgments of the Court of Justice of the European Union.

I.E. International law
The Republic of Poland is a party of many International treaties and agreements concerning the protection of personal data.

II. National bodies and procedures
The Inspector General for Personal Data Protection decides cases within its competence under provisions of the Code of Administrative Proceedings, unless provided for otherwise. A party dissatisfied with a decision issued by the GIODO may request for the reconsidering of the case. The decision by the GIODO on the application to reconsider the case may be appealed against with the Voivodeship Administrative Court. The judgment of the VAC may be a subject to a cassation complaint which is decided by the Supreme Administrative Court.

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 later 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 later 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 later 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 later amendments.
Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, Journal of Laws (Dziennik Ustaw) No 43, item 296, with later amendments
Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later 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 which is located in Warsaw (in Polish: Sad Okregowy w Warszawie Wydzial 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 trade mark has been registered by an unauthorized third party, the mark owner can use mediation, alternative dispute resolution (ADR) proceedings or civil court action to obtain the cancellation or transfer of such domain. However, following a recent judgement of the Polish Competition and Consumer Protection Court of 26 December 2006, case act signature XVII AmC 170/05, ADR is unlikely to succeed if the disputed domain name is registered in the name of a natural person.

Polish case law on personal data protection

December 11th, 2009, Tomasz Rychlicki

Below you will find a list of judgments and decisions on personal data protection in the context of IT technologies. You can find a more detailed discussion on each judgment or decision under the link provided with the case file. All judgments and decisions are given in chronological order.

- The judgment of the Supreme Administrative Court of 11 May 2010, case file I OSK 963/09.

- The judgment of the Voivodeship Administrative Court (VAC) in Warsaw, of 3 February 2010, case file II SA/Wa 1598/09. This judgment is not yet final. The cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Supreme Administrative Court (SAC) in Warsaw, of 18 November 2009, case file I OSK 667/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 3 March 2009, case file II SA/Wa 1495/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 30 Novmeber 2007, case file II SA/Wa 71/07.

- The judgment of the Voivodeship Administrative Court in Warsaw of 9 February 2005, case file II SA/Wa 1085/04.

See also my post entitled “Polish regulations on personal data protection“.