Polish IP & IT law » Art. 102 IPL

Archive for: Art. 102 IPL

Industrial design, case II GSK 323/09

February 23rd, 2010, Tomasz Rychlicki

A company filed a notice of opposition to a final decision of the Polish Patent Office (PPO) on the grant of a right in registration for the industrial design “Zadaszenie drzwi” (in English: door canopy) Rp-9198. The opposition has been filed under the provisions of article 102(1), article 103(1), article 104(1) and (2) and article 106(1) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments.

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

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

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

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

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

Wzór Przemysłowy Rp-9198

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

Industrial design case, VIII SA/Wa 332/09

February 11th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in a judgment of 15 December 2009, case file VIII SA/Wa 332/09, ruled that he “informed user” is a person who continues to use a product and therefore has some knowledge about its design. It is not a professional. This may be a very attentive consumer who knows what is he or she looking for and who draws attention to all visible elements of the product. The infromed user who uses cartridges for a roller blind, is certainly not an average user or an average purchaser of such product. While assessing the individual character of a cartridge for a roller blind, the scope of creative freedom should be assesed, taking into account the nature of the product and its utilitarian functions, and then, by establishing the characteristics of an “informed user”, the evaluation of a products and the differences should be performed through such prizm, bearing in mind that the “informed user” is one who knows that there are different types of cartridges and who examine them carefully. This judgment is not yet final. The parties may file a cassation complaint to the Supreme Administrative Court.

This judgment concerned the industrial design “Kaseta do rolet” (in English: cartridge for a roller blind), Rp-8019.

Wzór Przemysłowy Rp-8019

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

Industrial design, case II GSK 772/09

February 4th, 2010, Tomasz Rychlicki

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

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

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

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

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

Industrial design, case VI SA/Wa 703/09

January 22nd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 19 November 2009, case file VI SA/Wa 703/09 ruled that the entitled person to file a request for invalidation of a right in registration of an industrial design may be an owner of the industrial design registered with an earlier priority, if the existence of this deisgn is an obstacle to the novelty or individual character of the later design. The entitled person to file a request for invalidation may also be an entrepreneur that produces a product with a solution that is covered by the wrongly granted right in registration and to whom this wrongly granted right interferes with the freedom of business establishment and operation.

This case concerned the industrial design “Stelaż fotela” (in English: seat frame), Rp-8808.

Wzór Przemysłowy 8808

This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

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

Industrial design, case VI SA/Wa 1376/09

November 28th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 13 November 2009, case file VI SA/Wa 1376/09, ruled that the objections with regard to the lack of novelty and individual character of the industrial design may be raised only when we are dealing with the industrial design as defined in article 102 of the IPL

1. Any new and having individual character appearance of the whole or a part of a product resulting from the features of, in particular, the lines, colours, shape, texture or materials of the product and its ornamentation, shall constitute an industrial design.
2. Any industrial or handicraft item, including, in particular, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs, shall be considered to be a product.
3. The following shall also be considered to be a product:
(i) a product which is composed of multiple components, which can be replaced permitting disassembly and reassembly of the product (complex product),
(ii) a component part, if, once incorporated into the complex product, it remains visible during normal use of the latter, the use being understood as excluding maintenance, servicing or repair work.
(iii) a component part, if it may, by itself, be subject of commercialisation.
4. In case of a design applied to or incorporated in a product which constitutes a component part of a complex product within the meaning of paragraph (3)(i), assessment of novelty and individual character shall only be made in consideration of its visible features.

This case concerned the industrial design “Przeciwpożarowa klapa odcinająca” (in English: fire severing flapper), Rp-12053.

Wzór Przemysłowy 12053

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

Industrial design, case VI SA/Wa 211/09

September 29th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 29 September 2009, case file VI SA/Wa 211/09, held that according to article 102(1) of the IPL which provides that

any new and having individual character appearance of the whole or a part of a product resulting from the features of, in particular, the lines, colours, shape, texture or materials of the product and its ornamentation, shall constitute an industrial design

the prerequisite for registration as an industrial design is the recognition that there is the “appearance of the whole or a part of a product”, and therefore the subject of the application is visible on the outside. The conditions of novelty and individual character should be examined later. An invisible item, hidden from the visual perception of the buyer, or the “end user” (consumer) does not constitute an industrial design. It does not have a form of “a product” which meas its appearance. It’s not about the appearance of the component of a product which is visible after separated from the whole, but it is about the possibility to get visually acquainted with it when you buy it, and especially – during the so-called normal use.

This case concerned the industrial design “Ogranicznik wylewu” (in English: overflow limiter), Rp-9737.

Wzór Przemysłowy 9737

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

Copyrights in fonts typefaces

July 3rd, 2009, Tomasz Rychlicki

Legendary slanting font, in which the famous logo of Solidarity was written, is still eagerly used, but usually in a different context than its creator Jerzy Janiszewski would want to.

This characteristic typography was used, inter alia, in a new action of Gazeta Wyborcza newspaper called “We, narkopoles”. In turn, the word “equality” but with the rainbow flag, instead of white and red, was put on the cover of the last issue of a well-know homosexual magazine “Replika”. Solidaryca also appeared in advertisements, on boxes of cigarettes and bottles of vodka.

- These are cases of abuse and feeding on the values which the logotype commemorates. It leads to the devaluation of that symbol – says Janiszewski, who now lives in Spain. – I did not transfer my economic authors’ rights to anyone.

SOLIDARNOŚĆ

If you looking for more details, please read Rzeczpospolita’s article entitled “Solidaryca w służbie narkopolaków“.

Fonts’ typefaces can be protected as industrial designs in the Republic of Poland based on the provisions of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments.

Article 102
1. Any new and having individual character appearance of the whole or a part of a product resulting from the features of, in particular, the lines, colours, shape, texture or materials of the product and its ornamentation, shall constitute an industrial design.
2. Any industrial or handicraft item, including, in particular, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs, shall be considered to be a product.

However, the US law provides quite different approach. I wrote about that issue in my old post entitled “Music Videos And Typography“.

Industrial design, case VI SA/Wa 536/09

June 28th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 8 June 2009, case file VI SA/Wa 536/09, held that according to article 102(1) of the IPL the appearance of the whole or a part of a product decides about the possibility to qualify it as an industrial design, i.e. its appearance – visually perceived elements of a product that constitute a single entirety, not the product itself and its functional value or utility.

This judgment concerned the industrial design “Obudowa dzwonka” (in English: bell casing), Rp-5041.

Wzór Przemysłowy 5041

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

Industrial design, case VI SA/Wa 502/09

June 10th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 2 June 2009, case file VI SA/Wa 502/09, ruled that the examination of the novelty of an industrial design consists of carrying out a comparative analysis of various elements of a solution included in the opposed design and the industrial design applied for the registration and next, indicating of the existing differences and resolving what is their nature.

This judgment concerned the industrial design “Zestaw podstawek reklamowych Ring Fala” (in English: Set of advertising coasters Ring Fala), Rp-11780.

Wzór Przemysłowy 11780

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

Industrial design, case VI SA/Wa 1827/08

December 12th, 2008, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 11 December 2008, case file VI SA/Wa 1827/08, ruled that the protection of an industrial design may only apply to the appearance of an object – its external appearance, not to its internal structure. The cassation compliant bought before the Supreme Administrative Court was rejected in a decision of 16 December 2009, case file II GSK 238/09.

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

Wzór Przemysłowy Rp-9201

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