Kulikowska & Kulikowski is a firm of patent attorneys (in Polish: kancelaria rzecznikow patentowych), constituted as a registered partnership. In the Polish legal system, there is no distinction between trade mark attorneys and patent attorneys: the legal profession, which deals with industrial property law, performs both those functions. The profession is regulated by the Act on Patent Attorneys – APAT – (in Polish: ustawa o rzecznikach patentowych) of 11 April 2001, Journal of Laws (Dziennik Ustaw) No. 49, item 509, with subsequent amendments, and is recognized by the Polish Commercial Companies Code – CCC – (in Polish: Kodeks spółek handlowych) of 15 September 2000, Journal of Laws (Dziennik Ustaw) N. 94, item. 1037, with later amendments, as a “profession of public trust”.
In 2003, a year after making an offer to buy trade mark rights, which was turned down, K&K applied to the Polish Patent Office for the registration of the FLESZ trade mark for their own interest. There was rampant speculation that the law firm might have represented a client, the identity of whom they wished to keep secret in order to obtain the trade mark at a lower price. K&K initiated the proceedings to revoke the FLESZ trade mark registered in the name of Inco-Veritas in 1993. K&K based its claim on the fact that Inco-Veritas had ceased use of the mark for 5 years. The PPO discontinued the proceeding.
In 2005, K&K appealed to the Voivodeship Administrative Court in Warsaw. That court overturned the contested decision and ruled that the law firm could move for the revocation of the registered rights since the FLESZ trade mark had not been used. A court ruling to support K&K’s claim is needed for the PPO to let the firm register the trade mark for themselves.
Subsequently, Inco-Veritas filed the cassation complaint before the Polish Supreme Administrative Court (SAC). The Court ruled that K&K could not be a party in the lawsuit concerning the revocation of the rights in question because it lacked any proper interest to do so. The Court based its ruling on regulations included in the APA which provides that a law firm may provide services in the field of industrial property only to third parties. The SAC also ruled that such firms are not recognized as entrepreneurs as defined in article 87(2) of the Act on the Law of Economic Activity – ALEA – (in Polish: Prawo działalności gospodarczej) of 19 November 1999, Journal of Laws (Dziennik Ustaw) No. 101, item 1178. This law will be valid till 2011. Moreover, the SAC judged that K&K, being a law firm of patent attorneys and a registered partnership, was a company of public confidence. Accordingly, trade mark registration for its own use might undermine its credibility. The Voivodeship Administrative Court’s verdict was reversed and remitted for reconsideration. In 2006, the Voivodeship Administrative Court in Warsaw confirmed SAC’s judgment and rejected K&K’s claim.
K&K filed a cassation suit to the Supreme Administrative Court claiming that article 87(2) of the ALEA and article 72 of the APA were inconsistent with the Polish Constitution with regard to the freedom to acquire property rights. The SAC in a judgment of 29 March 2007, case file II GSK 234/06, dismissed K&K’s suit and ruled that a patent attorney is not an entrepreneur and that the freedom of economic activities may be limited by important public interest. In this case, the limitation is recognized as the idea of “the profession of public confidence”. Judge Anna Robotowska said that it was clear that regulations limiting patent attorneys’ commercial activities are constitutional. The Court did not find it applicable to send the case to the Court of Justice of the European Communities because the lawsuit had begun in 2003, which is before Poland joined the European Union.
The judgment confirmed that a Polish patent attorney’s prime role is to professionally represent clients seeking trade mark registration. Barring patent attorneys from registering trade marks in their own interest may also prevent them from unethical business practices.