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Archive for: Polish law

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.

Trade mark law, case VI SA/Wa 562/11

November 4th, 2011, Tomasz Rychlicki

The Polish Patent Office refused to grant the right of protection for the word trade mark flex fuga Z-297616 applied for by MAPEI POLSKA Sp. z o.o. for goods in Class 1 such as adhesives based on plastics and resins, silicone mortars, for goods in Class 6 such as decorative moldings, profiles, metal profiles, and for goods in Class 19 such as decorative moldings, profiles, profiles not made of metal, masonry mortars, dry plaster, mortars for grouting and welding.

The PPO decided that this trade mark is devoid of sufficient distinctive character and it lacks any additional elements, such as verbal or graphic, which would allow potential purchasers to identify the goods with the source of the origin of goods. The PPO noted that a fuga is a weld/joint between adjacent wall elements and flex means flexible in English.

MAPEI filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in Warsaw in its judgment of 26 August 2009 case file VI SA/WA 1017/09. MAPEI decided to file a cassation complaint. The Supreme Administrative Court in its judgment of 13 January 2011 case file II GSK 19/10 overturned the judgment of the VAC and held that the VAC relied on the erroneous assumption that the buyers (users) of goods bearing the trademark at issue are those who know English or use the Internet every day, which was not supported by any evidence. Besides, the trade mark flex fuga was applied for not only various types of mortars but also for various types of decorative moldings, profiles, sections of metal and non-metallic, and in relation to those goods it is difficult, to talk about “cut or bent” joint or weld.

The case went back to the Voivodeship Administrative Court. The VAC in its judgment of 9 May 2011 case file VI SA/Wa 562/11 held that the fact that the Polish Patent Office has granted the rights of protection for a number of trade marks containing the word “flex” or the word “flex” in combination with other words, should prompt the PPO to a broader examination of the merits of the MAPEI’s trade mark application. Thus, the PPO’s view that even if MAPEI relied on other decisions issued by the Polish Patent Office, it could not affect the assessment of the submitted application and its final examination, is not justified. The VAC noted that the PPO could change its position on the regularity of the grant of rights of protection, in which one element was the word “flex”, but it should justify such change in detail. The case law of the PPO may therefore be subject to change, if the authority demonstrates that there are reasonable grounds. However, any unfounded inconstancy of the opinion of the public body constitutes an infringement of the administrative procedure, because it may result in undermining citizens’ trust in state bodies and adversely affect the legal culture of citizens, and thereby cause a breach of the constitutional rule that all persons shall be equal before the law and all persons shall have the right to equal treatment by public authorities.

Copyright law, case I OSK 678/11

November 3rd, 2011, Tomasz Rychlicki

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

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

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

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

Copyright law, case VI ACa 461/11

November 3rd, 2011, Tomasz Rychlicki

Maryla Rodowicz is a well-known singer in Poland. She composed and recorded a song entitled “Marusia” about a Russian soldier-girl that was one of heroines from the book “Czterej pancerni i pies” written by Janusz Przymanowski. Mrs Rodowicz also created a video clip for this song. You can easily search and find it on YouTube. She used 3 minutes of the TV series entitled “Czterej pancerni i pies” where Marusia is portrayed by Polish actress Pola Raksa. Mrs Rodowicz paid 9.000 PLN of licensee fee to the producer Telewizja Polska S.A. A widow of the writer filed a copyright infringement suit claiming that this ridiculous video violated his personal and economic copyrights.

The Appellate Court in Warsaw in its judgment of 27 October 2011 case file VI ACa 461/11 had to answer the most important question, i.e. what was the nature of the video clip. Expert witnesses that were appointed by the agreement of both parties stated that the video is not an inspired work, because it directly incorporated some parts of the TV series. It wasn’t also a derivative work since it did not creatively transform the original work. Experts said that this was a work with borrowings, that copied fragments of someone else’s work where the right of quotation was exceeded. However, such use requires the consent of the copyright holder. The problem was that the producer was not able to provide the agreements from the time when the series was produced. The Court held, that in this case copyrights to the script are in the hands of creators, including Mr Przymanowski and his heirs. The Court ordered Maryla Rodowicz to pay 37.000 PLN of compensation.

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

Criminal law, case III K 76/08

October 28th, 2011, Tomasz Rychlicki

In 2007, Marek Witoszek wrote SEO software that allowed him to change the visibility ranking of a website of the Polish president Lech Kaczyński in search engines, when one of the Polish offensive words was typed in. He was prosecuted and charged based on the provisions of the Article 135 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.

Article 135. § 1. Whoever commits an active assault on the President of the Republic of Poland
shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.

§ 2. Whoever insults the President of the Republic of Poland in public
shall be subject to the penalty of the deprivation of liberty for up to 3 years.

The trial has been suspended for two years, because the judgment of the Constitutional Tribunal was expected to answer the question, whether one can be punished for insulting the president as an institution, not as a person. The Constitutional Tribunal in its judgment of 6 July 2011 case file P 12/09 held that Article 135 § 2 of the CRC is consistent with Article 54(1) of the Polish Constitution in connection with Article 31(3) of the Constitution and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, as amended. Mr Witoszek pleaded guilty and has requested a voluntary submission to punishment.

The District Court in Bielsko-Biała in its judgment of 25 October 2011 case file III K 76/08 sentenced Mr Witoszek for three months of imprisonment, and conditionally suspended the execution of a penalty for three years.

Trade mark law, case VI SA/Wa 875/11

October 27th, 2011, Tomasz Rychlicki

Juliusz Marek Nabiałek who owns the word-figurative trade mark Platan R-210901, filed a request for invalidation of the word-figurative trade mark PLATANUS OGRODY NATURALNE R-210602 registered for Przemysław Sochański. Mr. Nabiałek claimed that both signs are similar and cause the risk of misleading the public as to the origin of goods and services, especially since most goods and services are identical.

R-210901

Mr. Sochański claimed that he cooperated with Mr. Nabiałek in years 2001-2005. He emphasized that Mr. Nabiałek, without his knowledge or consent registered the trade mark Platan in 1995, but it was the name of a company that was founded by Sochański. In March 2007, he learned about this registration when he was served with the cease and desist letter prohibiting the use of the name Platan. Therefore, Sochański applied on 15 March 2007, for the right of protection for PLATANUS OGRODY NATURALNE trade mark. Therefore, he thought that the request for invalidation is a malicious and solely personal action. Mr Nabiałek decided to narrow the request only for services in Class 42 such as services in architecture, biological research, advice on environment protection. The Polish Patent Office invalidated the right of protection. Sochański filed a complaint against this decision.

R-210602

The Voivodeship Administrative Court in Warsaw in its judgment of 3 October 2011 case file VI SA/Wa 875/11 overturned the decision of the Polish Patent Office and held it unenforceable. The Court ruled that both trade marks are not similar and the similarity of goods and services is reduced only to their common numbering according to the Nice Classification. The VAC ruled that there was violation of the provisions of the administrative procedure, because the PPO did not consider all of the evidence required to decide the case, and has not indicated why certain facts were accepted as proven, and why others were denied the credibility and probative value.

Trade mark law, case VI SA/Wa 617/11

October 24th, 2011, Tomasz Rychlicki

On 17 October 2007, the Polish Patent Office registered the word trade mark Auto-dap R-197829 for Dariusz Chudobiński from Łódź. Andrzej Teodorczyk who owns Auto Serwis Dap, that is located in Pabianice town, filed a notice of opposition.

Mr Teodorczyk claimed that Mr Chudobiński acted in bad faith. He also noted that the sign in question was widely known in Pabianice and it was associated with the automotive garage operated by him under the name “AUTO DAP”. The garage was located in the immediate vicinity of the garage owned by Mr Chudobiński. Mr Teodorczy argued that the DAP company was founded by him in 1984, and its designation is an abbreviation of three names. Mr Teodorczyk pointed out that he had shares in the company AUTO-DAP sp. z o.o., that was also founded by Mr Chudobiński and his wife, however, he never transferred the right to the AUTO DAP sign.

The PPO dismissed the opposition and ruled that the Company AUTO-DAP sp. z o.o. has the property right to its company name, and Mr Chdobiński received a proper authorization to file for a trade mark Auto-dap for his own. The PPO ruled that a short abbreviation DAP, as an abstract term, can not be attributed to specific individuals, as their personal interest due to the order of letters in this expression. These letters can have different meanings for the average customer in perception of this determination. The Patent Office did not agree that Auto-dap trade maw was filed in bad faith. Mr Chudobiński submitted evidence documents that he used the name DAP in his business. Mr Teodorczyk, as one of the founders of the AUTO-DAP company, has agreed (and did not oppose) the use of the company’s name (firm) in this way. He used the same DAP designation in his business activities as an individual and in a company which shares has has sold to the owner of the registered trade mark. Mr Chudobiński filed a trade mark application according to the authorization and undertook the obligation to transfer the disputed trade mark on the company, for each request. It was therefore an application that has been made in good faith – the mark was used by the company for nearly 6 years – and the authorization for its registration by Mr Chudobiński did not violate the provisions of the Articles of Association. Mr Teodorczyk filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 16 June 2011 case file VI SA/Wa 617/11 dismissed it. The Court ruled that Mr Teodorczyk did not prove that Mr Chudobiński wanted to block business activities of Mr Teodorczyk for the reason that he has registered the disputed mark. The VAC noted also that Polish law provides that a right of protection will not be granted for a trade mark in respect of identical or similar goods, if the trade mark is identical or similar to a trade mark which, before the date according to which priority to obtain a right of protection is determined, has been well-known and used as a trade mark in respect of the goods of another party. However, this trade mark has to be well-known on the whole territory of the Republic of Poland or on a substantial part of it. The recognition and knowledge of the trade mark only in less than a significant part of the Polish territory, even if it is intense, does not create the right to a well-known trade mark. Knowledge of the trade mark in one city and its surroundings, even if it’s a large one, is not enough for the sign to be regarded as a well-known trade mark.

Access to public information, case I OSK 667/11

October 23rd, 2011, Tomasz Rychlicki

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

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

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

E-access to public information, case IV SA/Gl 1002/11

October 14th, 2011, Tomasz Rychlicki

A journalists requested one of the Polish companies to disclose information about the earnings of its directors (CEOs) and members of the supervisory board. He also wanted to know how many prizes, bonuses and other financial inducements were received by the CEO and the board members in the last three years, and how much the company has spent on advertising and promotion, how much spending and subsidies were distributed for non-governmental organizations, staff training, banquets and small meetings. He also demanded the indication of dates, names and amounts, the method of selecting contractors. This request was based on the provisions of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments. The journalist noted that the expected response should be sent to him via e-mail. The company provided information only on salaries, and refused to disclose other information that was subject to the request. The decision has been sent in the form of an electronic document to an e-mail address provided by a journalist. The company noted that other information belong to the category of “processed information”, therefore, the applicant has to indicate why the disclosure of such information is particularly important for the public interest. The journalist filed a complaint against this decision.

The Voivodeship Administrative Court in Gliwice in its judgment of 19 September 2011 case file IV SA/Gl 1002/11 rejected it, because of procedural reasons. However, the VAC held that the administration decision issued in the form of an electronic document must be signed by a secure electronic signature that is verifiable by a valid qualified certificate. The administrative decision that does not meet these requirements can not be regarded as signed, and therefore is not valid according to the provisions of Article 14 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.

Article 14. Principle of written proceedings
§ 1. All matters shall be disposed of in writing or in the form of an electronic document as defined in the Act of 17 February 2005 on Informatization of Operation of Entities Performing Public Tasks (Journal of Laws No. 64, item 565, as ammended), to be served by means of electronic communication.

The VAC also noted that in this case the decision has not been delivered in the proper form.

Article 110.
The public administration body issuing the decision shall be bound by it from the time of its service or publication, unless the Code provides otherwise.

Although in this case the content of the decision was known but it was not delivered in the form provided in the provisions of the APC. The decision was in fact delivered in writing but it was served by electronic means and in a way that was inconsistent with the provisions of APC, which could not be considered as effective service.

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 of Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.

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

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

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 interest, case II SA/Wa 364/11

October 13th, 2011, Tomasz Rychlicki

On January 2010, entries signed by the nick “arfulik” appeared on few Polish websites, the author wrote critically about the company Bavaria Consulting and a person who is a member of the board. It seemed that this unknown author conducted a competitive activity. Bavaria and Krystiana D. decided to sue for the infringement of personal interest. They needed personal data of a person who wrote questioned comments. Telekomunikacja Polska (TP), one of the largest ISPs, refused to provide such information, referring to the telecommunications confidentiality included in the Article 159 of the Polish Act of 16 July 2000, Telecommunications Law – TLA – (in Polish: Prawo telekomunikacyjne), published in Journal of Laws (Dziennik Ustaw) No 171, item 1800 with subsequent amendments. Allegedly slandered filed a complaint to the Inspector General for Personal Data Protection (GIODO). The GIODO ordered the disclosure the personal data but he overturned this decision after TP filed a request for reconsideration. The GIODO decided that such information is subject to the telecommunications confidentiality and found no reason to disclose it. The offended persons lodged a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 7 October 2011 case file II SA/Wa 364/11 dismissed it, and ruled that the intention of bringing action against the author of a forum post or comment is not a sufficient condition to disclose personal data. One has to file a suit for protection of personal interest. Only then, a court in order to avoid procedural deficiency, will summon the telecommunications operator to disclose personal data of the author of the questioned post.

Copyright law, case II SA/Gd 529/10

October 10th, 2011, Tomasz Rychlicki

The Mayor of Gdańsk city was requested to disclose an architectural project of the building. The Mayor refused and explained that this request could not be executed because it concerns the copyrighted work. By issuing certified copies the Mayor creates new documents, that may be used in different situations. The applicant argued that he needs a copy, not a certified one. The case was dismissed the Voivode in its order of 25 May 2010 no. WI.I/EK/7111-121/10. The Voivode is the administration body that hears complaints against such decisions, and the applicant decided to bring his case before the court.

The Voivodeship Administrative Court in Gdańsk in its judgment of 26 January 2011 case file II SA/Gd 529/10 overturned both decisions. The Court held, that although the architectural project of a building is a work covered by copyright protection, according to the provisions of Article 33² of of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments, it is permitted to use copyrighted works for the purposes of public security or for the purposes of administrative, court or legislative proceedings and any reports thereof.

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 VI SA/Wa 211/11

October 6th, 2011, Tomasz Rychlicki

SOREMARTEC S.A. requested the Polish Patent Office to invalidate the right of protection for the trade mark Raffaello Spumante Dolce Sweet Spumante QUALITA SOPERIORE R-182895 registered for Toruńskie Piwnice Win VINPOL Sp. z o.o., currently VINPOL Sp. z o. o.

R-182895

SOREMARTEC claimed that this sign is similar to the renowned series of RAFFAELLO trade marks registered on its behalf, that the application was filed in bad faith, and that this sign is similar to SOREMARTEC’s trade marks to a degree that causes a risk of misleading the public as to the origin of goods. SOREMARTEC noted that it is aware of VINPOL’s word trade mark RAFFAELLO R-87046 applied for registration in 1993 and subsequent word and figurative trade marks that include in their verbal elements the word “Raffaello”. Therefore, the Company did not oppose the coexistence of Raffaello pralines and sparkling wine bearing the label with the word “Raffaello” on the Polish market. However, the disputed trade mark includes the graphic version of RAFFAELLO that confusingly similar to the one that is consistently used by Ferrero for many years on the packaging of Raffaello pralines. The existence of the contested trade mark would be harmful to both the reputation and distinctiveness of its trade marks, as well as it would be unfairly “impersonating” the reputation of its trade marks without the cost of advertising and promotion. To prove the reputation of its trade marks SOREMARTEC submitted a copy of the public poll report entitled “RAFFAELLO Brand Recognition” and a copy of the report “Development of praline market in Poland”, which shows that the brand RAFFAELLO was in the forefront of the most popular brands of sweets in Poland, its advertising was one of the most remembered and associated advertising of pralines, and Raffaello pralines were among the 10 most frequently purchased and consumed pralines within 6 months preceding the date of the polls. SOREMARTEC also presented a tabulation of the total expenditure on advertising and promotion of Raffaello products in Poland, which have been incurred by Ferrero from 2001 to 2005, and a tabular summary of quantitative results of sales of Raffaello pralines for the period from February 2001 to February 2006. These data indicated that SOREMARTEC has continually expanded and refining the Raffaello’s product line incurring increasing financial investments and extensive marketing campaigns and advertising, so the demand for its products continues to grow. Moreover, SOREMARTEC argued that VINPOL applied for two other trade marks, which verbal element is identical to SOREMARTEC’s trade mark, i.e. MON CHERI R-194468 and word-figurative Mon Cheri CHERRY BRANDY & Delicious 18 High Quality R-203339, and this proves conscious and deliberate action designed to use the reputation of SOREMARTEC’s trademarks. In response, VINIPOL argued that the goods produced by SOREMARTEC, i.e., pralines, and wine are not identical or similar, and therefore there is no risk of misleading the public.

R-203339

The PPO invalidated the right of protection for the trade mark Raffaello Spumante Dolce Sweet Spumante QUALITA SOPERIORE R-182895. The PPO ruled that the circumstances, i.e. several years of presence on the Polish market of Raffaello pralines before the filing date of the contested trade mark, a volume of sales and high percentage of recognition of Raffaello trade marks and its distinctive character, what is the result of both the original form of a trade mark, as well as expenditures on promotion and advertising, confirmed the reputation of Raffaello pralines. According to the PPO, the goods such as alcohol and sweets have many features in common, particularly because they are not consumed for nutritional purposes but for pleasure, such goods can be produced by one company, and may also be sold in a set, or eaten together, which may cause the potential audience to associate sparkling wine with Raffaello pralines. The PPO decided that the contested trade mark, because of its form, will attract the attention of consumers who know the early signs and the goods, in connection with which these trade marks are used. As a result, VINPOL would gain unfair advantage that is mostly based on creating the effect of interest in the goods and services marked with this sign, without having to incur any expenditure on promotion of its goods and services. The PPO has also stressed that the fact that earlier registrations of trade marks for wines with the Raffaello element did not authorize VINPOL to create labels of those products in a form, which resemble them to reputable trade marks, and therefore let VINPOL to benefit from the fact that the recipient seeing the wine Raffaello associate them with products offered by SOREMARTEC that enjoys good reputation among buyers. VINPOL filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 29 July 2011 case file VI SA/Wa 211/11 dismissed it. The Court noted that provisions of the Polish Act on Industrial Property Law does not contain a legal definition of a reputable/renown trade mark, so the Court had to refer to the opinion developed by case law and doctrine. The Court of Justice in its judgment of 14 September 1999 Case C-375/97 Chevy formulated the definition of a renowned trademark for the first time. The doctrine points out that the reputation of a trade mark depends primarily on the quality of the goods bearing it, the financial investment made by the entrepreneur to promote its sign in the media and the period of time required for the customer to establish relationship between a specified quality with goods that bears a sign that represents this high quality (recognition of goods bearing the trade mark on the market). The passage of time needed for the establishment of reputation of the trade mark is different for goods from different industries. The period of time depends on many factors, in particular on the intensity of advertising surrounding the launch of the goods bearing the sign. Furthermore, by creating a reputation of a trade mark, the advertising function of a sign is also strengthen, because such a mark encourages customers to purchase goods bearing it. This function is the result of an advertising of a sign staggered in time, by the use of a mark by an authorized entity and the relationship created in the minds of consumers between a sign with positive associations, particularly with regard to quality, usefulness, of product, the profitability of its acquisitions, and other characteristics relevant to the recipients of goods bearing the trade. Also the domestic case law provides that the reputation of a trade mark is characterized by 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, as it was decided in the judgment of the Supreme Administrative Court of 9 May 2008 case file II GSK 506/07, the judgment of the Supreme Administrative Court of 27 February 2008 case file II GSK 359/07.

The Court ruled that the PPO correctly concluded, based on the evidence presented that SOREMARTEC’s trademarks are reputable, and the sign at issue is similar in such a way that consumers can associate these characters with each other, and the use of this trade mark by VINPOL may bring unfair advantage due to the obvious use of the reputation of the trade marks owned by SOREMARTEC. The evidence showed that Raffaello pralines were present on the Polish market several years before the filing date of the contested trade mark, the sales were rising over the years, the high percentage of recognition of Raffaello, and a significant volume of promotion and advertising, created the image of the brand as a symbol of quality, delicacy and elegance. All this confirms the reputation of Raffaello pralines. At the same time as it was pointed by the Appellate Court in Warsaw in its judgment of 3 October 2007, case file I ACa 767/07, there is no requirement of likelihood of confusion in relation to reputed trade mark, only the possibility to associate a sign with a reputed trade mark that was registered earlier, which results that the first sign is able to attract customers through positive images carried by a reputable character. Associations between such trade marks occur when the designation used by the infringer automatically brings in minds of potential customers a reputable character originally used by the owner, even if the recipient is aware of the fact that both entities are completely independent. If these signs are also used to designate similar goods, there is no need to show any additional evidence. Apart whether consumers will confuse this trade mark as to the origin of the goods designated, it will draw attention to goods bearing a renowned trademarks. Such a situation would give unfair advantage resulting only from similarity to the earlier reputed mark, based mainly on the effect of interest that would arouse in the goods covered by the contested mark, without incurring any expenses for promotion of those goods.

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.