Polish IP & IT law – copyright trademark computer internet telecomm

Archive for: Polish Supreme Court

Internet domains, case III CSK 120/11

May 15th, 2012, Tomasz Rychlicki

MEDianus sp. z o.o. and Medianus Agencja Reklamowa sp. z o.o. are seated in the same city, at a location nearby. The first one uses medianus.net domain name and the second medianus.pl. The first company was entered in the Register of Business Entities in the National Court Register (KRS) as MEDianus in June 2003 r. The second one was entered in 2009. MEDianus sp. z o.o. filed a complaint, to prohibit the other company to use the name “medianus” in the company name and as a domain name, based on the provisions of Article 3 and 5 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), published in Journal of Laws (Dziennik Ustaw) No. 47, item 211, with subsequent amendments. MEDianus sp. z o.o. argued the the use of the same company name caused many confusions with delivery of post or invoices.

R-200943

The District Court dismissed all claims. However, the Appellate Court in Kraków agreed with MEDianus sp. z o.o. appeal and ordered Medianus Agencja Reklamowa to change its company name and website and to publish an apology in two national newspapers.

Z-360648

The Polish Supreme Court in its judgment of 9 December 2011 case file III CSK 120/11 dismissed the complaint filed by Medianus Agencja Reklamowa. The Court held that in order to apply the provisions of Article 5 of the CUC, both companies have to be in competitive relationship. This situation happens when there is a risk of confusion with regard to the identity of entrepreneurs. The Court also confirmed that the so-called cybersquatting is an unnamed delict (tort) under the Polish law on combating unfair competition.

See also “Polish case law on domain names“.

Personal interest, case I CSK 111/11

March 25th, 2012, Tomasz Rychlicki

Cezary Pazura sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Pazura claimed that the company infringed his dignity, the inviolability of the home, privacy and publicity, by publishing 17 articles that concerned his relationship with Edyta Zajac, then fiancee, and now his wife. He argued that comments like “his mistress was no longer pretending, what she meant?”, “oldish playboy” were clear examples of the infringement. The District Court agreed with Mr Pazura, but Grupa o2 appealled, and the Appellate Court reversed the contested judgment and dismissed the suit. Mr Pazura filed a cassation complaint.

The Supreme Court in its judgment of 14 December 2011 case file I CSK 111/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration. The Court held that the public status of a person does not automatically mean that his or her private life becomes also a “public life”. The Court clarified the understanding of the provision of Article 14(6) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.

It is not allowed to publish information and data concerning the private sphere of life without the consent of the person concerned, unless it is connected directly with the public activity of such a person.

The Court ruled that in this case it was necessary to demonstrate the relationship between the public activity carried out by Mr Pazura, and published image, or private information that was published on pudelek.pl website. Therefore, it had to be a relationship between a person’s behavior in the public sphere. In addition, the disclosure of such information should serve to protect specific, socially legitimate interest. Therefore, the primary task of the courts was to determine whether in this case, Mr. Pazura’s consent was granted, or whether it was not needed at all.

Copyright law, case IV CSK 133/11

January 18th, 2012, Tomasz Rychlicki

The Supreme Court in its judgment of 21 October 2011 case file IV CSK 133/11 held that the respective remuneration for the culpable infringement as defined in Article 79(1) pt. 3 letter b of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments, does not depend on proof of actual damage that was suffered by the rightholder.

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

Copyright law, case III CZP 61/11

November 19th, 2011, Tomasz Rychlicki

The Polish Supreme Court in its order of 26 October 2011 case file III CZP 61/11 held that manufacturers and importers of photocopiers, scanners and other similar reprographic equipment, that allow for the production of copies of the whole or part of the published copyrighted work, are obliged to provide to the competent organization for collective copyright management (collecting society), information and documents, that relate to all contracts for the sale of these devices.

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

Personal interest, case IV CSK 665/10

November 7th, 2011, Tomasz Rychlicki

Writing under a pseudonym, Dariusz B. posted a comment on the website “Gazeta online Elbląg 24″. In his post Dariusz B. wrote to the Mayor of the Elbląg town, that he has photographs of people who sit in the city council, and he described the content of these pictures as a “sex scandal”. He noted that the Mayor’s spokesman ignored this case, so he wanted to know what should he do next with such photographs. Other anonymous Internet users posted comments under the post that has been written by Dariusz B. One of them has disclosed who is the author of the post, and also expressed a negative opinion about the post, by calling it a blackmail. This person also suggested that Dariusz B. has used the media for his own purposes in order to manipulate press journalists. The intentions of Dariusz B. and his honesty, were also undermined. The post of Dariusz B. was described as a blatant violation of the law for which he should bear criminal responsibility. “Gazeta online Elbląg 24″ is a service available for free. It is operated by the Municipality of the Elblag town. The comment in which personal data of Dariusz B. was disclosed was written from a computer that had the IP address belonging to the organizational unit of the Elblag town. The unit operates wireless Wi-Fi, whose range includes several publicly accessible areas of the building and parking lot adjacent to it. It was not possible to identify the person who posted this comment. The Police, at the request of Dariusz B. commenced an investigation and failed to establish who was the author of the comment, even when the Municipality of Elblag has disclosed all data, including IP addresses. Dariusz B. sued the Municipality of Elbląg for the infringement of his personal interests. The District Court and the Appellate Court dismissed the suit. Dariusz B. filed a cassation complaint.

The Supreme Court in its judgment of 8 July 2011 case file IV CSK 665/10, published in electronic database LEX, under the no. 898708, held that critical comments of the content of post and the very fact of its posting, or disclosure of the name and surname of Dariusz B., was not a violation of his personal interest. However, it was a violation of personal interests (dignity and reputation) when such action has been called illegal activity, fraudulent and manipulative, a blackmail and provocation, which undoubtedly discredited Dariusz B. in public opinion, especially as a social activist, who was active at another online forum. Such statement, not supported by the facts, was unlawful. In the case of an infringement of one’s personal interests, the court may award pecuniary compensation to a person whose personal interests have been infringed, an approriate amount as pecuniary compensation for the wrong suffered or may, on his demand, adjudge an appropriate amount of money to be paid for a social purpose chosen by him, irrespective of other means necessary to remedy the effects of the infringement. Not only the person who directly caused the damage shall be liable, but also any person who has induced or helped another person to cause the damage, including those who consciously took benefit from a damage caused to another person. However, the Court ruled that there was no normal causal link between the actions of the Municipality of Elblag, and the damage suffered by Dariusz B., and such a link occurs only when the action is directed to accomplish the tortious activity.

By opearating a website “Gazeta online Elbląg 24″ and a discussion forum, the Municipality of Elbląg was deemed as the Internet services provider. However, such ISPs, are responsible for the violation of personal rights performed by others only when they knew that the post violates these interests and they did not immediately prevent the access to the post. Therefore, the ISP is not obliged to control the content of posts written by users on a free discussion forum website. Taking into account the nature and purpose of services based on making available free of charge of a discussion website, and considering also that there were no general rules for the management of such services and systems, the Court held that there were no grounds to impose a general obligation on the ISP to provide tools to identify users of such a website. The Court ruled that the anonymity of persons using the publicly available online news website, is a generally accepted principle and essence of this type of service. It provides freedom of expression, which is the goal of such websites. Consequently, the Court held that the ISP that created and provides free access to the website with a discussion forum, has no obligation to ensure the ability to identify the users who maded posts on this website.

Copyright law, case P 18/09

October 14th, 2011, Tomasz Rychlicki

The Constitutional Tribunal of the Republic of Poland in its judgment of 11 October 2011 case file P 18/09 held that Collecting Societies acting on behalf of authors, performers, producers of phonograms and videograms and publishers, may demand from manufacturers of copiers and recorders all information and documents necessary for calculation of the amount of fees levied on them. The producers and importers of tape recorders, video recorders and other similar apparatus are obliged to pay these fees according to Article 20(1) of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.

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

The Association of Copyright Collective Administration for Authors of Scientific and Technical Works requested one of the Polish companies to provide information about copiers imported and sold in Poland. Every Collecting Society has the right to request such information based on the provisions of Article 105 of the ARNR.

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

This request created legal uncertainty and the case ended before the courts. The Appellate Court in Wrocław had doubts whether such request violates trade secrets of a company, and there are any guarantees to protect against fraud. The Court noted that the protection of trade secrets is guaranteed by the freedom of economic activity. That freedom may be restricted only for reasons of important public interest. Meanwhile, the interest of collecting societies is not the public interest, but the sum of the partial interests of private authors, creators and publishers.

The Constitutional Tribunal ruled that fees charged by Collecting Societies are collected in order to protect the rights of creators, performers, producers of phonograms and videograms and publishers. This means that the restriction of freedom of economic activity was in accordance to the condition expressed in Article 31(3) of the Polish Constitution.

Article 31
Freedom of the person shall receive legal protection.

Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

The Constitutional Tribunal held that in order to protect the rights of others, the legislature intervenes in the economic relations, that are based on the model of market economy in a democratic state, whose pillars are freedom of economic activity and private property. The Constitutional Tribunal held that Article 105(2) of the ARNR limits the freedom of economic activity, but it does not affect the principle of proportionality. The limitation of the freedom of economic activity serves to protect the interests and constitutional values such as the rights of creators, social conditions and economic foundations of a market economy. The limitations of economic activity are necessary to protect these values, and to avoid state interference in the sphere of access to modern reprographic equipment.

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

Personal interests, case I CSK 743/10

October 8th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment case file I CSK 743/10 ruled that if the newspaper, which lost a case for protection of personal interests and was ordered to publish an apology in the paper version, has also an online edition, then such a newspaper should also place a reference to apologies for this publication in its online archive.

Trade mark law, case IV CSK 393/10

October 5th, 2011, Tomasz Rychlicki

Hochland Reich Summer & Co. KG owns a three-dimensional trade mark IR-736770 in Poland, and Hochland AG is the owner of the right in registration of an industrial design Rp-5337. The 3D trade mark is not used in the clear registered form, but is marketed as a product package of ALMETTE cheese, with additional verbal and figurative elements. Both Hochland AG and Hochland Reich, Summer & Co. KG, together with Hochland Polska sued the Polish dairy cooperatives in Piątnica, because it has used the packaging for cheese, on which a graphic of a wooden pail that was similar to Hochland’s trade mark and design, was placed.

IR-736770

The District Court in Białystok in its judgment of 13 October 2009 case file VII GC 49/07 dismissed the suit and refused to recognize the trade mark as a renowned one. However, the Court agreed with the opinion issued by the expert witness that a clean pail, without any identifiers, stands out positively in comparison to other packagings, and by its distinctive shape is strongly associated with the Almette brand. The District Court agreed with Piątnica that this trade mark was not used in trade in its registered form, and that Hochland did not prove that the use of cup-like pail brings Piątnica unfair advantage or is detrimental to the distinctive character of Hochland’s trade mark, which is a prerequisite to the protection of reputed/renown trade marks. The Appellate Court in Białystok in its judgment of 26 February 2010 upheld these findings except the costs and the issue of trade mark use. Hochland filed a cassation complaint.

The Supreme Court in its judgdment of 10 February 2011 case IV CSK 393/10 found that the Appellate Court decided that the expert’s opinion had no probative value because of the unrepresentative range of research on which it was based, and as a result, the Court found that Hochland failed to prove that its trade mark is a distinctive sign, with reputation. The Appellate Court spoke on the inadequacies of the expert opinion only in the justification of the judgment, and not during the proceedings, which precluded Hochland from filing proper evidence. The Supreme Court ruled that renowned trade marks enjoy special protection – wider than the other trade marks, i.e., even if there is less similarity between trade marks or the goods. In the case of reputed signs, the risk of confusion or the likelihood of confusion is not required. The association with the earlier renowned sign is a sufficient condition. The Court noted that the Polish Industrial Property Law does not provide any definition of reputable trade mark, but only points to the specific conditions of protection. The Supreme Court emphasized that the definitions provided in the legal commentaries, as well as in the case law of the Court of Justice of the EU and Polish courts, differ in this respect. The Court noted that a reputable trade mark is recognized by a significant part of relevant public. The Polish legal commentators argue that such a sign must be known at least by 25 percent of relevant public, and if the percentage exceeded 50 percent, the reputation is always proved. The Supreme Court also noted that the protection of a reputable trade mark does not require the owner to prove that the use of a similar trade mark has brought its user unfair advantage or was detrimental to the distinctive character or the reputation of the earlier mark. A mere possibility of obtaining unfair advantage by the infringer or the very possibility of harmful effects to the distinctive character or the repute of the earlier trade mark, is a sufficient condition. Therefore, these conditions have normative and hypothetical nature. The Supreme Court held that the Appellate Court erred in the examination of the opinion of another expert witness, who showed that the use of the image of a wooden pail on the packaging of cheese, in the assessment of 69% of consumers may affect their decision on the purchase of goods, and therefore it could potentially influence the purchase of the goods produced by the defendant in its packagings. This circumstance was important for assessing whether the use by the defendant of Hochland’s trade mark could bring Piątnica unfair advantage at the expense of the owner of the trade mark, who first used the sign and incurred substantial costs for its promotions within a few years.

The Appeallate Court in Białystok in its judgment of 7 July 2011 case file I ACa 305/11 was bound by the decision issued by the Supreme Court. The Court pointed out that according to the opinion of Grzegorz Urbanek, who was appointed as an expert witness, the wooden pail is associated to the Almette brand in the perception of most respondents. Both the opinion and attached results showed that even a same wooden pail without and with identifiers has the same effect, i.e. the half of the respondents, because of the packaging, was willing to buy the Almette cheese, and not other cheese of the same type but in the same packagings. Therefore, the Appellate Court prohibited Piątnica to use in the course of trade of a figurative sign representing a wooden pail with a handle, on the packaging of its cheese products. Piatnica still uses the packaging for its cheese, which is similar to a wooden pail. The dairy cooperatives replaced the image from the packaging with the milk-churn with pouring milk.

Copyright law, case V CSK 373/10

August 5th, 2011, Tomasz Rychlicki

The Polish Filmmakers Association (SFP) sued a local cable television. The dispute concerned unpaid royalties, because this local TV rebroadcasted movies without a proper agreement with the Collecting Society. SFP is the only of such collection societies in Poland responsible for the management for movies and TV series. The court ordered the TV station to cease rebroadcasting, and ordered to pay compensation equivalent to triple rates of remuneration. The TV station argued that the calculation of damages was based on rates that are not market prices, since they have benn negotiated and established by the only organization on the market. The case went to the final instance.

The Supreme Court in its judgment of 15 June 2011 case file V CSK 373/10 held that a court cannot prohibit rebroadcasting of TV programs, if it was a part of the activity of a cable television, even if rebroadcasting was made without the consent of the collecting society. If the parties argue about rates for rebroadcasting, the court shall appoint a witness expert, because the rates that are used by the collecting societies for rebroadcasting are not market rates by definition, because they were adopted by one organization. Moreover, the Court ruled that the claim for payment of double of the respective remuneration as provided in Article 79(1) pt. 3 letter b of the ARNR, is a special way of protecting author’s economic rights. It has the compensatory nature, and it’s not required to demonstrate evidence of the culpability of the person who used copyrighted work without the required permit, the damage that was suffered by the rightholder and benefits that were acquired by the infringer, during the suit.

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

Copyright law, case II CSK 527/10

June 6th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment of 25 May 2011 case file II CSK 527/10 held that a person who made some editorial changes of a scientific work that involved the removal of parts of dubious scientific value is entitled to claim the co-autorship of such a work. See also “Copyright law, case V CK 391/02“

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

Copyright law, case IV CSK 274/10

May 10th, 2011, Tomasz Rychlicki

The Supreme Court in its judgment of 26 January 2011 case file IV CSK 274/10 held that creation of legal rules that are included in the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments, and that concern copyright agreements, does not exclude the applicability of the provisions of the Civil Code, especially particular chapters of the CC. The conclusion of contracts other than these provided for in the ARNR, mainly the contract of transfer of copyrights (i.e. all economic rights that are primarily attributed to the creator) or the contract for the use of the work (licences), is not excluded if the specificity of copyright is also taken into account. There was also no reason to exclude – in principle – the possibility to establish the lease on copyright, of course, after the conditions set in Article 709 of the CC have been satisfied.

Article 693. § 1. By a contract of tenancy, the landlord shall assume the obligation to give a thing to the tenant for use and the collection of fruits for definite or indefinite time, and the tenant shall assume the obligation to pay to the landlord the rent agreed upon.
§ 2. The rent may be stipulated in money or in performances of another kind. It may also be specified in terms of a fraction of the fruits.

Article 694. The provisions on lease shall apply respectively to tenancy with the observance of the provisions stated below.

Article 695. § 1. The tenancy concluded for a period longer than thirty years shall be deemed, after the lapse of that period, to be concluded for indefinite time.
§ 2. Repealed.

Article 696. The tenant shall exercise his right in accordance with the requirements of proper management and cannot change the designation of the object of tenancy without the consent of the landlord.

Article 697. The tenant shall be obliged to make repairs indispensable for maintaining the object of tenancy in a non-deteriorated condition.

Article 698. § 1. The tenant cannot, without the consent of the landlord, give the object of tenancy to a third party for gratuitous use nor for holding under a subtenancy.
§ 2. In the case of non-observance of the above obligation, the landlord may terminate the contract of tenancy without observing the time limit of the notice.

Article 699. If the time limit of the payment of the rent is not specified in the contract, the rent shall be payable after a time limit customarily accepted, and in the absence of such custom semiannually at the end of every period.

Article 700. If, as a result of circumstances for which the tenant is not liable and which do not pertain to him personally, the usual revenue from the object of tenancy is considerably reduced, the tenant may claim a reduction of the rent for the given economic period.

Article 701. The movable things covered by the statutory right of pledge vested in the landlord shall include the things used in the running of a farm or an enterprise if they are on the area of the object of tenancy.

Article 702. If it is stipulated in the contract that in addition to the rent the tenant shall have the obligation to pay taxes and bear other burdens connected with the ownership or the possession of the object of tenancy as well as to bear the costs of its insurance, the statutory right of pledge vested in the landlord shall also cover his claims to the tenant for the reimbursement of the sum paid by the landlord for the reasons specified above.

Article 703. If the tenant is in delay with the payment of the rent for at least two full periods of payment, and if the rent is payable annually, if he is in delay for more than three months, the landlord may terminate the contract of tenancy without observing the time limit for the notice. However, the landlord shall warn the tenant by setting him an additional time limit of three months for the payment of the rent in arrear.

Article 704. In the absence of a contract to the contrary, the contract of tenancy of agricultural land may be terminated one year in advance at the end of the year of tenancy, and another contract of tenancy, six months in advance before the lapse of the year of tenancy.

Article 705. After the termination of the tenancy, the tenant shall be obliged, in the absence of a contract to the contrary, to return the object of the tenancy in the condition in which it should be in accordance with the provisions on the exercise of tenancy.

Article 706. If, at the termination of the tenancy, the tenant of agricultural land leaves it sown according to his duty, he may claim the reimbursement of the outlays on those crops, where, contrary to the requirements of proper management, he did not receive the appropriate crops at the beginning of the tenancy.

Article 707. If the tenancy ends before the end of the tenancy year, the tenant shall be obliged to pay the rent in such proportion in which the fruits which he collected or could have collected bear to the fruits from the entire year of tenancy.

Article 708. The provisions of the present Section shall apply respectively where the person taking an agricultural immovable property for use and collection of fruits is not obliged to pay the rent but only to pay the taxes and to bear other burdens connected with the ownership or the possession of land.

Article 709. The provisions on the tenancy of things shall apply respectively to the lease of rights.

The lease would have to include at least one field of exploitation (the concept included in the Polish copyright law, where the owner has the right to dispose the use of a copyrighted work on different fields of use) and the associated possibility of obtaining benefits, for example, by allowing the lessee to display the copyrighted work for profits.

The Court ruled also that the exhibition of photographs can be a derivative work as defined in the Article 2(1) of the ARNR.

Art. 2.-1. Derived works made from the work of another, in particular translations, transformations and adaptations, shall be protected by copyright without prejudice to the rights in the original work.
2. The manner of disposal of the derived work and the use thereof shall be subject to the consent of the creator of the original work (dependent copyright), except where the economic rights in the original work have expired.
3. The creator of the original work may withdraw his consent if, in the course of the five years following its grant, the derived work has not been disclosed. Remuneration paid to the creator shall not be susceptible of repayment.
4. A work inspired by another’s work shall not be considered a derived work.
5. The name of the creator of the original work and the title thereof shall be mentioned on the copies of the derived work.

However, as in the case of other works, the final assessment depends on the outcome of the examination that was made in terms of statutory criteria for the work to be protected by copyright, taking into account that, while defining the derivatives, the basic prerequisite of creativity has to be taken into account.

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

Collective interests of consumers, case III SK 44/10

May 9th, 2011, Tomasz Rychlicki

Terms of Service of Domeny.pl website contained a clause that allowed Domeny.pl to introduce changes in TOS and it also included a statement that the changes take effect “from the time a new version is available on the website”. The President of the Office of Competition and Consumer Protection decided that this provision violates the collective interests of consumers as they should be always informed about amendments to the terms. Otherwise they would have to constantly check to see if TOS has not been modified. The President ordered the removal of the questioned terms of service. Domeny.pl filed a complaint against this decision. The Supreme Court in its judgment of 12 April 2011 case file III SK 44/10 dismissed the complaint.

Press law, case IV 346/08

April 27th, 2011, Tomasz Rychlicki

The information about the preparatory proceedings and a criminal trial of the two members of the Wielkopolski Bank Rolniczy board, had been revealed by the Polish prosecutor general Konrad Napieralski. He had mentioned each of the person by a full name. His statement was transmitted on TV, news were published in the Internet. Bianka Mikołajewska wrote an article about this case in the Polish newspaper “Polityka” published by Spółdzielnia Pracy Polityka.

Both members of the board filed a civil suit for the infringement of their personal interests against Mrs Mikołajewska and the publisher. They recalled the provisions of Article 13 of the Polish Act on Press Law, which under no circumstances permits publication of any personal data concerning people during a court trial, unless a prosecutor or a court of law permit the publication. The journalist did not asked for a permission.

The first instance court dissmissed the case and the higher court accepted its decision. The Court ruled that Article 13(2) of the APL does not apply to public figures. Both courts agreed that if personal data has been disclosed in a public statement, a journalist has the right to consider its free access. The plaintiffs filed a cassation complaint to the Supreme Court. They argued that the provisions of Article 13(2) the APL apply to them as the public figures. They claimed that even when personal data are freely accessible that doesn’t mean they are to be published in a newspaper.

The Supreme Court in its judgment of 28 January 2009 case file IV 346/08 dissmissed the complaint. The Court ruled both lower courts were wrong. The Court decided that the Article 13(2) of the APL applies to the public figures too. However, the Supreme Court agreed that the journalist is free from charges. It was not in journalist duties to check if a prosecutor acted in good faith during his official statements.

Personal interest, case II CSK 431/10

February 21st, 2011, Tomasz Rychlicki

Polish pop-singer Dorota Rabczewska sued Polish rapper Mieszko Sibilski for the infringement of her personal interests. She demanded an apology and 20.000 PLN as compensation for the damage she suffered. Rabaczewska lost the case in the first instance. The Court of second instance ordered Sibilski to publish an apology for the infringement of her dignity in the form of an online ad that has to be placed for 7 days at Polish portal site Onet.pl. The calculations showed that such action would cost around 32.000.000 PLN. Sibilski lodged an cassation complaint.

The Supreme Court in its order of 2 February 2011 case file II CSK 431/10 held that the court cannot order an apology for the violation of dignity, if the plaintiff requested for the protection of other personal interests, in this case her reputation and right to privacy. Moreover, the Supreme Court ruled that the second instance court improperly ordered the form of publication of an apology because it did not take into account technical requirements and the costs associated with it. The Supreme Court reversed the judgment and sent the case back for reconsideration.

Labour law, case II PK 110/10

February 18th, 2011, Tomasz Rychlicki

The Polish Supreme Court in its judgement of 4 November 2010 case file II PK 110/10 held that single use of the company computer (laptop) for personal use during working hours and the occasional viewing of erotic files outside working hours is not a grave violation, which determines the disciplinary dismissal (termination of an employment agreement/contract).

Categories: Art. 52 §1 pt 1 Labour Code | e-law issues | Polish Labour Code | Polish Supreme Court.

Press law, case I CSK 664/09

November 25th, 2010, Tomasz Rychlicki

In 2001, the Polish magazine “Polityka” published the article entitled “Po pierwsze Sandauer”. The author quoted a surgeon who operated Adam Sandauer, the president of Primum Non Nocere association, in which he had said that instead of more surgery Mr Sandaur needed a psychiatrist. The author quoted other doctors, who spoke about Sandauer being in conflict with the medical community and suggested that he is in bad mental condition. He quoted passages of Sandauer’s private mail to confirm this statement. Mr Sandauer sued and the case went through all instances. The Supreme Court in its judgment of 17 listopada 2010 case file I CSK 664/09 held that publication of private correspondence without the permission of the author, and especially when it concerns the sphere of his or her private life, such as health, is unlawful.

Trade mark law, case IV CSK 231/10

October 27th, 2010, Tomasz Rychlicki

The Supreme Court in its judgment of 21 October 2010 case file IV CSK 231/10 held that the combination of colors may serve as a trademark but the entrepreneur, who is entitled to the right of protection, cannot prohibit the use of one of such colors that is used by another entrepreneur in its trade mark. Judge Wojciech Katner stated that the single color cannot be a trademark.

R-115856

The object of protection is in this case a combinations of colors, as referred to in Article 120(2) of the Polish Industrial Property Law. The trade mark infringement occurs when the proportions and the use of a given color by another entrepreneur will not allow for distinguishing of trade marks. Sending the case back for reconsideration the Court stated that the judgment of the court of the second instance should be clarified so that the dominance of the green color, would not suggest that this was British Petroleum fuel station. The court agreed with the defendant that one cannot monopolize the colors, and only some are valuable on the fuels market. The Court held that although different entrepreneurs use the same color to designate their stations, it will not lead to consumers confusion because of the layout, and even a shade of these color. See also “Trade mark law, case IV CSK 61/09“.

Unfair competition, case V CSK 192/09

September 28th, 2010, Tomasz Rychlicki

AFLOFARM Fabryka Leków sp. z o.o. from Ksawerów sued two Polish companies for trade mark infringement and unfair competition delict/tort with regard to selling similar pharmaceutical products. This case went through all instances.

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The Supreme Court in its judgement of 22 January 2010 case file V CSK 192/09 published in the electronic database LEX, under the no 564857, dismissed the complaint filed by Hasco Lek S.A. and Hasco Lek Dystrybucja. The Court held that the specificity of the market’s segment in which the magnesium preparations are sold, and which boils down to the fact that the same or very similar products gains the advantage of customers, through its specific name and advertising of such product and its packaging, requires greater care when introducing a new product of a very similar name and packaging, because it cannot mislead consumers, and it cannot take away consumers from another producer.

Copyright law, case IV CSK 359/09

September 17th, 2010, Tomasz Rychlicki

The Polish company KREA sp. z o.o. prepared a label design for yoghurt packaging that was commissioned by Wojciech Jurkiewicz. The Company contacted a freelance graphic deisgner to create word-figurative trade mark, which was to be placed on this packaging. KREA acquired all copyrights. Wojciech Jurkiewicz filed for trade mark registration but the PPO refused to grant the right of protection. Mr Jurkiewicz was also sued by KREA and the District Court ordered the defendant to cease the copyright infringement of economic rights owned by KREA to the word-figurative trade mark JOGI by deisisting from using of the sign in any form in the course of economic activity and ordered Mr Jurkiewicz to pay 51.000 PLN. The Appelate Court changed the judgment only by reducing the amount awarded to 15.000 PLN.

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KREA also filed a suit against OBORY sp. z o.o., claiming copyright infringement of its word trade mark JOGI. The Company argued that the binding force of the judgment against Mr Jurkiewicz extends to a conclusion that JOGI word is deemed as a copyrightable work.

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The Supreme Court in its judgment of 22 June 2010 case file IV CSK 359/09 held that only the dictum is the binding element of a judgment, not its motives, therefore, the previous judgment has no expanded legitimacy. It was not a reasonable argument that the earlier cited judgment in case against Wojciech Jurczyński would always be the official confirmation of the plaintiff’s copyright to a word sign. The idea for the word “JOGI” (which existed previously in the public domain) as a designation for drinking yoghurt, is nothing creative or original. The Court noted that the opinion that copyright law does not use the novelty condition in the objective sense, but in subjective terms, is dominating. The condition of work’s “originality” is satisfied if there subjectively exists a new product of the intellect. One may say about the self-creativity only if the created work was not previously known in the same form, and thus it manifests itself in an objectively tangible result of creativity. The approach presented by KREA, which lies almost on the presumption of fact that every product of human intellectual is a protected copyrightable work, without demonstrating of its creative elements, has no support in the ARNR and is too far reaching. In a wider perspective, such conclusion would be the risk of depreciation of the concept of creativity in general. In principle, a single word, not only these taken from everyday language, but also the unknown words or neologisms, do not have the characteristics of creativity. Only one-word titles, or slogans, may be exemption to the aforemtnioned rule when applied to specific situations, when they are characterized by a startling clarity and brilliance, make poetic of the whole work, are the “key” to understanding of such work. The Polish legal doctrine and case law have long since stopped using the term “pure art” and promoting the traditional cultural role, which the right had to serve. The concept of “copyright work” is recognized widely, with persistent tendency to mitigate the criteria governing the granting of copyright protection, such as creativity, originality and individuality. The evidence of such actions is presented in the protection of the products of which contain a small contribution to creative work, and characterized by even a small degree of originality and individuality. In this context, the concept of “boundary categories of works” is used and also – in principle – the possibility of granting copyright protection to small products of human activity that are designed for purely utilitarian and practical use, is not denied. The ARNR protects works created not only for artistic purposes and does not refuse the protection for works created solely for commercial (industrial, merchandising) purposes, but only in so far as the work has such characteristics that are required for any other copyrightable work. The utilitarian purpose of copyrightable works, created solely for the intended use in a certain way, is typical for the objects that are subject to industrial property rights, in particular industrial designs and trade marks In the case of the latter it most often applies to word-figurative trade marks. In Polish law it is permissible to accumulate of certain intangible property/econimic rights, including trademarks being also copyrightable works and industrial designs/copyrightable works.

In the opinion of the Supreme Court, the mere use of a word as a trade mark should not affect the possibility of its recognition as a copyrightable work, since the existence of such work cannot depend on its specific purpose. The way of using a given work does not decide on the statusu of its copyrightability. The word “JOGI” does not show originality, which could allow for an exception to the generally accepted principle that single words do not have creative characteristics. It has no autonomous characteristics of the copyrightable work, and it isn’t a copyrightable work because of someone “invented” a particular way of its use as a trade mark, or designation of a particular type of goods originating from a particular undertaking.

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

Trade mark law, case V CSK 293/09

September 2nd, 2010, Tomasz Rychlicki

Polish company Technopol sp. z o.o. succeeded to register in the Polish Patent Office over a hundred word and word-figurative trade marks in the form of Arabic numeral “100″ and its multiples (200, 300, etc.) together with the word “Panoramicznych” or “Panoram”. Technopol was sued by another Polish entrepreneur, Roman Oraczewski who publishes crossword magazines under such titles as “222 Panoramiczne”, “333 Panoramiczne”, “500 Krzyżówek”, “300 Krzyżówek z Uśmiechem”, “300 Krzyżówek Panorama Rozrywki”. Mr Oraczewski claimed protection to its press titles and Technopol filed counter claims based on Article 10 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), published in Journal of Laws (Dziennik Ustaw) No. 47, item 211, with subsequent amendments.

Article 10.1. Such indication of products or services or its lack, which may mislead customers in relation to the origin, quantity, quality, components, manufacturing process, usefulness, possible application, repair, maintenance and another significant features of products or services as well as concealing the risks connected with their use, shall be the act of unfair competition.
2. Releasing for free circulation products in the packing which may cause effects referred to in section 1 above shall be the act of unfair competition, unless the use of such packing is justified by technical reasons.

Technopol requested the court to issue preliminary injuction ordering Mr Oraczewski to cease the sale and introduction to the market of all his magazines bearing titles that are identical or similar to Technopol’s trade marks. The Court granted the injunctive relief. Mr. Oraczewski did not agree with such order and after couple of years this case ended in a final dismissal of the application for preliminary injunction. Mr. Oraczewski sued Technopol for the compensation for the loss incurred due to the enforcement of the injunction. He claimed over 67.000.000 PLN loss. According to Article 746 §1 of the Civil Proceedings Code – CPC – (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No. 43, item 296, with subsequent amendments, when a preliminary injunction has been granted and the plaintiff fails to file the principal claim, withdraws it, the claim fails for procedural reasons, or is dismissed as unfounded, the defendant may demand compensation for the loss incurred due to the enforcement of the injunction. The claim expires if it is not pursued within one year from the moment the loss occured. This provision makes a plaintiff who obtained a preliminary injunction but ultimately failed with its principal claim liable towards the defendant for the loss caused by the injunction.

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The Supreme Court in its judgment of 25 February 2010 case file V CSK 293/09 held that the liability provided under Article 746 § 1 of the CPC is independent of plaintiff’s fault. However, the Court dismissed Mr Oraczewski complaint because he did not follow the preliminary injunction order.