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Archive for: Art. 104 IPL

Industrial design law, case VI SA/Wa 922/10

January 19th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 13 September 2010 case file VI SA/Wa 922/10 ruled on three important factors of the design law. The VAC held that the “overall impression” refers to the design as a whole, and not to its individual characteristics. It is therefore a general effect, the general feeling that is caused by compared designs on an informed user – whether it is a different impression, or the same. The informed user is a person well informed and having a good understanding and knowledge in this field, who is using certain items or groups of items, with knowledge about this products which is more practical or theoretical than the average user and having more abilities to perceive the characteristics of the object then the average user, and being infromed in the state of industrial design in the given field and being capable of distinguishing the available designs. The scope of creative freedom is determined by the functional characteristics of the object and the earlier state of designs. The oriented user must have a sufficient knowledge to assess the scope of creative freedom and be able to see even relatively small differences, important for the designs of low creative freedom.

Rp-10794

This judgment concerned the industrial design “Uchwyt meblowy” (in English: furniture handle), Rp-10794. The judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case II GSK 932/09

January 10th, 2011, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 19 October 2010 case file II GSK 932/09 held that an industrial design concerns the form of a product, i.e. external characteristics that are observable, and individual appearances of a product cannot be claimed only because the material which was used to achieve the final effect (that was claimed in the application of the industrial design) is different from the one initially used, or that the production method of the design has changed. Also, these external elements which are not sufficiently visible cannot decide on a different, individual character of the industrial design.

Rp-9192

This judgment concerned the industrial design “Zadaszenie drzwi” (in English: door canopy), Rp-9192. The judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 921/10

December 6th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 13 September 2010 case file VI SA/Wa 921/10 ruled on three important factors of the design law. The VAC held that the “overall impression” refers to the design as a whole, and not to its individual characteristics. It is therefore a general effect, the general feeling that is caused by compared designs on an informed user – whether it is a different impression, or the same. The informed user is a person well informed and having a good understanding and knowledge in this field, who is using certain items or groups of items, with knowledge about this products which is more practical or theoretical than the average user and having more abilities to perceive the characteristics of the object then the average user, and being infromed in the state of industrial design in the given field and being capable of distinguishing the available designs. The scope of creative freedom is determined by the functional characteristics of the object and the earlier state of designs. The oriented user must have a sufficient knowledge to assess the scope of creative freedom and be able to see even relatively small differences, important for the designs of low creative freedom.

Rp-10801

This judgment concerned the industrial design “Uchwyt meblowy” (in English: furniture handle), Rp-10801. The judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 852/10

November 23rd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 20 September 2010 case file VI SA/Wa 852/10 held that an industrial design has individual character if the overall impression it produces on the informed user differs from the overall impression caused by the design that was publicly available before the date according to which the priority is claimed. The scope of creative freedom in developing the design should be taken into account in assessing individual character of the industrial design. The VAC agreed with the Polish Patent Office that the opposed designs are determined by the function to which they were intended. The condition for invalidation of a design is not an infringement of an exclusive right but the statement that the use of industrial design violates personal or property rights of third parties, and the applicant has based its opposition on such arguments. The assessment whether the condition occurs in the light of that provision is therefore within the exclusive jurisdiction of the Polish Patent Office that should decide such case in the litigation procedure.

Rp-13123

This judgment concerned the industrial design “Ubranko ochronne dla zwierząt” (in English: animal protective gown), Rp-13123. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 505/10

November 18th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 23 June 2010 case file VI SA/Wa 505/10 held that as the informed user should be considered a person who orders from the manufacturer a set of advertising pads to promote his or her own business and to distribute such pads to places of their use. This is undoubtedly a model of an informed user, and so a hypothetical user who physically does non-exist, who uses the product continuously, so it is not the average consumer neither professional. From his or her point of view, the Polish Patent Office shall assess the overall impression on users of a given design and opposed designs. Nevertheless, it is the informed user who compares industrial designs. The scope of creative freedom in developing the design, is determined by the functional characteristics of the object and the earlier designs.

Rp-11754

This judgment concerned the industrial design “Podstawka reklamowa świecąca Star light” (in English: flashing advertising pad Star light), Rp-11754. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design case, VI SA/Wa 1727/09

September 20th, 2010, Tomasz Rychlicki

This is the continuation of a story described in “Industrial design law, case VI SA/Wa 1215/07“. The Polish Patent Office invalidated the right in registration based on the guidelines outlined in the mentioned judgements. The Polish company Gerlach S.A. filed a complaint against this decision. The Voivodeship Administrative Court in Warsaw in its judgment of 14 December 2009 case file VI SA/Wa 1727/09 ruled that the PPO correctly examined all evidences and dissmissed the case. The Court held that in accordance with the views of Polish legal doctrine and the established case law, the informed user is one who knows the scope of creative freedom and the state of design.

Rp-6048

This case concerned the industrial design “Rękojeść sztućców” (in English: handle for cutlery), Rp-6048. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 1706/09

September 15th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 4 December 2009 case file VI SA/Wa 1706/09 held that there is no doubt that only the specialist is qualified to comment on the general impression that questioned designs produced on an informed user, as this specialist is also deemed as the informed user within the meaning of Article 104 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), 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 subsequent amendments.

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.

The Court also noted that in the assessment of evidence and proper application of the rule of law provided in Article 104 the IPL, the concept of “informed user”, “general impression” and “degree of creative freedom in developing the design”, which have not beed defined by the legislature, had to explained by the PPO and the Court. In the opinion of the Court, the essential arguments of the Supreme Court’s judgment of 23 October 2007 case file II CSK 302/07 could be applied to this case case. See “Industrial design case, II CSK 302/07“.

Wzór Przemysłowy Rp-11355

This judgment concerned the industrial design “Kanapa tapicerowana rozkładana” (in English: upholstered sofa bed) Rp-11355. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 504/10

August 24th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 11 May 2010 case file VI SA/Wa 504/10 held that the scope of creative freedom is determined by the functional features of the object and the previous designs. In case of designs that must meet particular functional requirements, the scope of creative freedom is smaller than in the case of designs, which have more of the aesthetic features. Where the scope of creative freedom is broader, the differences between designs should be more noticeable than in the narrow scope of that freedom. The informed user must have information on the object, that is sufficient to assess the scope for creative freedom and be able to see even relatively small differences, that are important in the case of designs with little creative freedom.

Wzór Przemysłowy Rp-11748

This judgment concerned the industrial design “Podstawka reklamowa Star base” (in English: advertising pad Star base) Rp-11748. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 599/10

August 2nd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 12 May 2010 case file VI SA/Wa 599/10 held that the factual justification of the decision of the Polish Patent Office should contain the facts that the PPO regards as proven, the evidence relied upon and the reasons for which other evidence has been treated as not authentic and without probative force. The legal justification should contain the legal authority for the decision with reference to the relevant law. Only justification prepared in accordance with these requirements allows for a full review of the contested decision. The Court upheld the contested decision and ruled it unenforceable because the PPO found that the design meets the requirement of individual character, but it did not explain which differences in shapings decide on their individual character. The position of PPO as to a small range of creative freedom was also not apparent from the justification.

Wzór Przemysłowy Rp-12232

This judgment concerned the industrial design “Plafoniera sufitowa” (in English: Ceiling plafoniere/ceiling-mounted chandelier) Rp-12232. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 598/10

August 2nd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 12 May 2010 case file VI SA/Wa 598/10 held that the court’s review of a decision issued by the PPO does not include a requirement to make additional findings for a case. The factual justification of the decision should contain the facts that the PPO regards as proven, the evidence relied upon and the reasons for which other evidence has been treated as not authentic and without probative force. The legal justification should contain the legal authority for the decision with reference to the relevant law. Only justification prepared in accordance with these requirements allows for a full review of the contested decision.

Wzór Przemysłowy Rp-12224

This judgment concerned the industrial design “Ramię ozdobne do opraw oświetleniowych” (in English: Decorative Arm for luminaires) Rp-12224. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 33/10

June 13th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 7 May 2010 case file VI SA/Wa 33/10 ruled that the illustration of the industrial design shall consist in particular of drawings, photographs or samples of a textile fabric. The description describing the illustration of the industrial design should present the design in a manner clear and detailed enough to enable the design to be reproduced on the basis of the illustration in any form indicated in the application. In particular, the description shall contain the definition of the industrial design and indicate what it is intended for, determine the figures of the illustration or indicate numbers of samples, include a numbered list of the forms of the industrial design where the application contains such forms, and finally designate those features of appearance, which distinguish the filed design from other known designs and enable its identification. Therefore, that abstract and claims are not required in the application for industrial design. However, some applicants continues to file design applications with protection claims included, which is the remnant and a habit, pursuant to old provisions on ornamental designs.

In the assessment of the design application, the Polish Patent Office should, as indicated by the Voivodeship Administrative Court in its judgment of 11 August 2009 case file VI SA/Wa 1088/08, and according to the provisions of Article 153 of the PBAC, include analysis of the documentation referred to in Article 107(2) of the IPL.

Article 107
1. The right in registration of an industrial design shall not subsist in features of a product:
(i) which are solely dictated by its technical function,
(ii) which must necessarily be reproduced in their exact form and dimensions in order to permit the product to be mechanically connected to, or to interact with, another product.

2. The provision of paragraph (1) shall be without prejudice to the registration of an industrial design serving the purpose of allowing multiple assembly or connection of mutually interchangeable products within a modular system.

The Court held that the abovementioned practice exercised by applicants and the PPO with regard to accepting applications with protection claims and the registration process, does not exempt the PPO from the duty to examine industrial design applications according to Article 107(2) of the IPL.

Rp-1077

This judgment concerned the industrial design “Wiadro” (in English: Bucket) Rp-1077. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design, case VI SA/Wa 506/10

May 27th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 27 may 2010 case file VI SA/Wa 506/10 held that due to the fact that the Polish Patent Office did not timely corrected the deficiency of the reasons of its decision and it did not decided and ruled on this issue in its response, although irregularities were indicated in the complaint, the Court had to decide at this stage of proceedings that the contested decision infringes the rules of administrative proceedings in the aspect that could significantly affect the outcome of the case.

Wzór Przemysłowy Rp-11779

This judgment concerned the industrial design “Zestaw podstawek reklamowych Star Fala” (in English: Set of advertising coasters Star Fala) Rp-11779. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design, case VI SA/Wa 1038/09

May 21st, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 23 February 2010 case file VI SA/Wa 1038/09 held that the Polish Patent Office wrongly ruled that the admission of evidence based on the testimony of a witness will not bring anything new to the case, by stating that these witnesses were not credible evidence that the subject of disclosure in the shop (boards) was questioned industrial design. The VAC held that such ruling has the nature of prejudice and is contrary to the provisions of administrative procedure because the PPO made the assessment of usefulness and credibility of evidence, of which it has not get acquainted with.

Wzór Przemysłowy Rp-11243

This judgment concerned the industrial design “Tablica informacyjna” (in English: Information table) Rp-11243. The judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design, case VI SA/Wa 34/09

April 28th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 26 February 2010 case file VI SA/Wa 34/09 ruled that there is no doubt that the industrial design must be assessed in such a form in which it will be possible to visually acquaint with it and with all the features of a product. The Court ruled that the use of folders for documents is also based on their opening and closing in order to place the relevant documents inside, therefore, the discussed “inside” features must also be examined.

Wzór Przemysłowy Rp-4223

This judgment concerned the industrial design “Teczka na dokumenty” (in English: Folder for documents) Rp-4223. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design, case II GSK 323/09

February 23rd, 2010, Tomasz Rychlicki

A Polish 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. 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), 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 subsequent 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 stated 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 its judgment of 19 November 2008 case file VI SA/Wa 1767/08 dismissed 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 dismissed the cassation complaint. The SAC held that any correspondence, not only commercial, bears the characteristics of confidentiality due to the fact that by its nature it is addressed to the designated entity, and refers the specific content associated with a certain confidence on the part of the sender. Its publication requires the consent of both parties. Therefore, it coould not be argued that the disclosure of a new design could take place in the correspondence between the two businesses working together. The cassation complaint also presented the argument of exceeding the principle of formality. The Court ruled it unfounded based on provisions of Articles 255 and 256 of the IPL.

Article 255¹
1. Litigation proceedings in the cases referred to in Article 255(1)(i)-(viii) shall be initiated at a written request.
2. A request for initiation of a proceeding shall be subject to payment of a fee.
3. A request shall contain:
(i) identification of the parties and their addresses
(ii) brief presentation of the case
(iii) clear definition of the decision sought
(iv) reference to the legal ground
(v) indication of evidence
(vi) signature of the requesting party and a date
4. The request shall be accompanied by:
(i) a power of attorney, where the request is submitted by the representative
(ii) copies of the request in a number corresponding to the number of the parties to the litigation proceeding
(iii) a receipt for the payment of the fee referred to in paragraph (2).
5. The Patent Office shall check whether the request for initiation of a litigation proceeding satisfies the formal requirements referred to in paragraphs (3) and (4).
6. Where the request fails to satisfy the formal requirements, the Patent Office shall invite the requesting party to remove the defects, under pain of discontinuance of the proceeding, within 30 days.

Article 256
1. The provisions of the Code of Administrative Procedure shall apply accordingly to litigation procedure before the Patent Office in cases not regulated by this Law.
2. To costs of proceedings the provisions applied in civil law proceedings shall apply accordingly.
3. The provisions of the Code of Administrative Procedure governing re-examination, at a party’s request, of cases, in which decisions not liable to appeal were taken, shall not apply to decisions on merits taken after hearing.
3¹. The cases referred to in Article 2553(2) may be requested to be re-adjudicated. A time limit for submitting a request shall be, in case of a decision made – two months and in case of an order issued – one month from the date of the decision or the order being served upon the party.

Because of the adversarial nature of proceedings before the PPO, the party has to prove the circumstances from which it derives the legal consequences that are more favorable. The proceedings before the Polish Patent Office are reduced of principles set out in the of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments, including the principle of formality, or the principle to watch over the interests of the parties by the public administration bodies.

Wzór Przemysłowy Rp-9198

This case concerned the industrial design “Zadaszenie drzwi” (in English: door canopy) Rp-9198. See also “Polish regulations on industrial designs” and “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 its 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.

Wzór Przemysłowy Rp-8019

This judgment concerned the industrial design “Kaseta do rolet” (in English: cartridge for a roller blind), Rp-8019. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design case, II CSK 302/07

January 8th, 2010, Tomasz Rychlicki

I have to write about another important judgment I forgot to report two years ago. This time it is the judgment of the Supreme Court – Civil Chamber of 23 October 2007, case file II CSK 302/07, published in the Jurisprudence of the Polish Courts (in Polish: Orzecznictwo Sądów Polskich) of 2009, No 6, p. 451, together with the gloss by Maria Poźniak-Niedzielska at p. 455.

Some readres may be confused with regard to different courts deciding the same subject matter – in this case – designs and I need to explain that the administrative proceedings in designs’ cases, in general, concerns all decisions made or orders issued by the Patent Office of the Republic of Poland (the PPO takes decisions on granting, refusal to grant of a right in registration for an industrial design etc.) which are liable to complaint lodged to the Voivodeship Administrative Court (VAC) in Warsaw. Judgments made by the VAC may be a subject of a cassation complaint filed before the Supreme Administrative Court (SAC). However, cases with regard to infringement of a right in registration granted for an industrial design are decided in civil law proceedings. That was the reason the aforementioned case was decided at the last stage by the Supreme Court. See “Administrative, civil and criminal proceedings in trade mark cases in Poland“.

The Supreme Court had to give the interpretion of provisions of Article 104 and 105 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), 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 subsequent amendments.

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 105
1. For an industrial design a right in registration may be granted.

2. The right in registration shall confer the exclusive right to exploit the industrial design for profit or for professional purposes throughout the territory of the Republic of Poland.

3. The holder shall enjoy the right to prevent any third party from making, offering, putting on the market, importing, exporting or using a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes.

4. The right conferred by the registration of an industrial design shall include any design which does not produce on the informed user a different overall impression. Article 104(2) shall apply accordingly.

5. The right conferred by the registration of an industrial design shall be limited to the kind of products, in respect of which the protection has been applied for.

6. Subject to Article 111, the term of a right in registration shall be 25 years counted from the date of filing of an industrial design application with the Patent Office, the said term being divided into 5-year periods.

Wzór Przemysłowy 6751

The SC held that the examination whether there was any infringement of the registered industrial design requires a comprehensive comparison of designs from the perspective of the person using (on a permanent basis) these items, which belong to specific group of goods, a person being oriented/informed in designs that originate from the creative freedom and to examine/assess whether the overall impression produced by the questioned design on such a person differs or not from the general impression caused by the registered design.

Legal commentators stressed the fact that the concept of “informed user” (oriented) was implemented in the IPL following the adjustment of Polish law to protection standards that exist within the EU law. The person being an informed user is a newcomer in the pantheon of fictional characters of industrial property rights, functioning as a certain pattern. In article 26(1) of the IPL already exists such character called “a person skilled in the art”.

1. An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.

The Polish commentators also noted and commented on foregin judgments such as Procter & Gamble Company v Reckitt Benckiser (UK) Ltd., [2007] EWCA Civ 936 and Woodhouse UK Plc v Architectural Lighting. Systems t/a Aquila Design and Urbis Lighting Ltd. [2005] ECPCC (Designs) 25, [2006] RPC 1 and OHIM Invalidity Division’s decisions such as Eredu S Coop v Arrmet SRL, ICD 24, 27 April 2004 and Honda Motor Company Ltd v Kwang Yang Motor Company Ltd, ICD 1006, 30 August 2006.

Industrial design law, case VI SA/Wa 518/09

January 7th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 21 July 2009 case file VI SA/Wa 518/09 ruled that where the scope of creative freedom is greater, the assessment of the originality of the design may justify the thesis that the differences should have easily discernible character. By contrast, in the case of a design with a small range of creative freedom, even small differences will not remain unnoticed by the informed user. The design must be different from designs already known and cannot create the impression that a product of such a form of a design has already been seen. It is necessary to examine the compared designs, including the overall impression which is triggered by the design in terms of the so-called “informed user”. The term “informed user” indicates the person who uses the product/design on a permanent basis, so it is not, nor is the average consumer, or the average expert.

Wzór przemysłowy 11751

This judgment interpreted, inter alia, the provisions of Articles 103 and 104 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), 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 subsequent amendments.

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.

2. The designs shall not be deemed to have been made available to the public within the meaning of paragraph (1), if it could not have become known to the circles specialised in the sector, to which the design belongs.

3. The provision of paragraph (1) shall not prevent a right in registration to be granted, if a design:
(i) has been disclosed to a third party under explicit or implicit conditions of confidentiality,
(ii) has been disclosed during 12-month period preceding the date according to which priority to obtain a right in registration is determined, by the designer, his successor in title or a third person with the right holder’s consent, as well as if the disclosure has occurred as a consequence of an abuse in relation to the designer or his successor in title.

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.

Industrial design law, case VI SA/Wa 746/09

August 23rd, 2009, Tomasz Rychlicki

The Polish Patent Office registered the design of a bottle in the form of a contour map of Poland Rp-11003, applied for by Przedsiębiorstwo Wielobranżowe Euro-Kamil Polska sp. z o. o. from Wrocław.

Rp-11003

Jacek Andruszkiewicz from Warszawa filed a request for invalidation of this design. Mr Andruszkiewicz argued that the questioned design lacks of novelty. He pointed out to the 3D trade mark registration R-91920 owned by Jacek Andruszkiewicz Jolanta Duch s.c. DAYGLOB Biuro Exportowo-Importowe from 6 October 1995.

R-91920

The PPO invalidated the right in registration in its decision of 14 January 2009, case file Sp. 555/07. The PPO held that Jacek Andruszkiwicz had a legal interest in seeking the invalidation, as a competitor in the market of bottles. Euro-Kamil filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 22 June 2009, case file VI SA/Wa 746/09 repealed the contested decision and held it unenforceable. The Court ruled that the PPO did not examine if the legal interest was real and sent this case for reconsideration.

Industrial design, case VIII SA/Wa 332/08

February 10th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 4 February 2009 case file VIII SA/Wa 332/08 ruled that not every method of disclousure of an industrial design is relevant, as it provides the opportunity to familiarize with it to persons acting in a professional manner in the same sector. It must be remembered that in accordance with the views of the legal doctrine and commentators, this possibility must be a real, materially relevant, and therefore it has to occur in circumstances that allow to assume the actual knowledge, which is the result of normal proffesional activity, specialized in the given sector. Therefore, it is not about the mere fact of disclosure of a design, but about whether specific people have actually an opportunity to get acquainted with the design.

Wzór Przemysłowy 6991

This case concerned the industrial design “Podstawa słupa” (in English: column base), Rp-6991. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 1088/08

August 12th, 2008, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 11 August 2008 case file VI SA/Wa 1088/08 ruled that it is not enough to prove that the design applied for differs from opposed designs, but it must also be proved that it does not contain the characteristics of these designs – further – that it is not in fact the sum of the characteristics of these designs, it is not a combination of opposed designs.

This judgment concerned the industrial design “Wiadro” (in English: bucket), PRZ-1077. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Industrial design law, case VI SA/Wa 1215/07

January 2nd, 2008, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 11 October 2007 case file VI SA/Wa 1215/07 decided on the novelty of an industrial design based on electronic evidences. The court ruled that such evidences are not sufficient. A CD print-out from a database can not be treated as a legal document with an unquestionable date since there are graphical tools which make a modification of such data an easily possibility. In this case such a proof can not be deemed a proper evidence if it is not properly certified. Also a statement issued by a private company is not enough unless it is supported by invoices or official publications of catalogues of exhibitions where such product was shown. A compact disk has to be certified by an expert as regards to a date it was burned.

The Supreme Administrative Court in its judgment of 29 July 2008 case file II GSK 267/08 upheld this decision.

Rp-6048