A Polish lawyer who felt insulted by the comments that appeared on znanyprawnik.eu website, sued its owner. The case went through all instances. The Polish Supreme Court in its judgment of 18 January 2013 case file IV CSK 270/12 dismissed the cassation complaint filed by the offended lawyer. The Court held that all comments were not about facts that could be verified, only described the experience of cooperation with a lawyer and did not contain offensive or vulgar expressions. The plaintiff is an attorney, a public person performing certain services in the field of law and his services should be subject to assessment, which is not always favorable. Due to the nature of the activities carried out by the plaintiff, the limits of acceptable criticism are wider, because the person undertaking public activities does it voluntary, yet inevitable, undergo evaluation and public reaction.
Archive for: Polish Civil Code
Personal interests, case IV CSK 270/12
April 19th, 2013, Tomasz RychlickiPersonal interest, case XXIV C 1035/10
March 14th, 2013, Tomasz RychlickiThe “Nigdy Więcej” (Never Again) Association and the “Zielone Światło” (Green Light) Foundation organized a social action entitled “Nazism never again on Allegro”. It was a protest against a Polish auction website Allegro.pl which allowed to buy and sell different Nazi gadgets and memorabilia. The Foundation together with a writer, artist and social activist Jerzy Masłowski prepared an illustration with Allegro.pl logotype in which in which two L letters were changed and shaped as the SS symbol. This illustration was used on postcards that were handed out to different people during the street-action that happened near Metro Świętokrzyska in Warsaw on 21 March 2010.
On 20 April 2010, the Foundation received a cease and desist letter from QXL Poland – the owner of Allegro. The Company requested the removal from all public places of all publications, photographs, posters and billboards, and other materials that included the altered trade mark. QXL demanded destruction of all the above mentioned materials and asked the Foundation to publish an apology on its website, as well as in the pages of Gazeta Wyborcza newspaper. The Foundation refused to comply.
QXL Poland sued the “Zielone Światło” foundation and Jerzy Masłowski for the infringement of personal rights. During the trial, the Foundation argued that it has conducted correspondence with Allego with regard to products with fascist symbols or products referring to fascist ideology, that were offered at different auctions. However, it has not brought the intended effect, because Allegro.pl did not remove these items from its website. For this reason, the Foundation organized the street action. The Foundation argued that from 8 June 2010, the provisions of Article 256 of the Criminal Code were amended.
Art. 256.
§ 1. Whoever publicly promotes a fascist or other totalitarian system of state or incites hatred based on national, ethnic, race or religious differences or for reason of lack of any religious denomination
shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.§ 22 The same punishment shall be imposed on anyone, who for the purpose of dissemination, produces, records or import, acquire, stores, possess, presents, transports or transfers a print, record or other item of the content specified in § 1 or being a carrier of the fascist, communist or other totalitarian symbolism..
§ 3 A crime is not committed by a perpetrator of a forbidden act specified in § 2, if he or she commits the said act in the course of artistic, educational, collectible or scientific activity.
The Foundation concluded that its action was a response to long-term omission of Allegro. The action was organized to draw the attention of relevant authorities and the public at auctions that poses a danger to others. It sought to protect an important public interest, and therefore was not unlawful. In addition, the Foundation argued that according to the legal doctrine the criticism aimed at improving the reality is not illegal, even if it is excessively expressive in description and in negative assessment, as well as it’s impolite way of expression and presentation of arguments, if it is justified by the importance of issues raised and the literary form that was used. Moreover, the scope of permissible criticism depends on the weight of social affairs, and in case of doubt, freedom of expression takes precedence, and in some cases even offensive criticism is acceptable. If the case requires so, the criticism might be very offensive, and it may even seek to destroy the enemy, for example, in the dispute against pedophilia or against the view that is glorifying Stalin. The Foundation argued also that a request for legal protection raised by Allegro cannot ban the Foundation and other individuals from expressing their critical opinions of the plaintiff’s conduct. Such behavior constitutes an abuse of the subjective right as decided by the Appeallate Court in Lódź in its judgment of 25 May 2006 case file I ACa 15/06, published in electronic database LEX, under the no. 512493.
On 9 November 20011, a lawyer representing the Foundation presented a legal opinion issued by Prof. Wojciech Sadurski. Prof. Sadurski wrote that there was no violation of personal interests. In the opinion of the author, the case brought by QXL Poland illustrates the conflict between two types of claims related to absolute rights protected by the law. The claims relating to freedom of expression, and intellectual property claims relating to the protection of trade marks owned by QXL Poland. Citing the case law of the Polish Constitutional Tribunal, prof. Sadurski argued that freedom of speech is superior to other constitutional rights and freedoms. He noted that limiting the right to freedom of expression by issuing a ban on speech, would violate the essence of the constitutional right to freedom of speech. Prof. Sadurski cited Smith v Wal-Mart Stores, 537 F.Supp.2d 1302 (ND GA 2008), however he pointed out that the Foundation does not conduct any commercial activity, and the risk of consumers’ confusions is clearly excluded. Please bear in mind that such opinions are treated by the Courts as private documents, not as the expert witness evidence/testimony. The case is pending and the next hearing is scheduled on 6 February 2012.
QXL Poland filed also a request for preliminary injunction. The District Court in Warsaw in its order of 20 January 2011 case file XXIV C 1035/10 dismissed it during a closed-door court session (in camera). However, the Appeallate Court in Warsaw in its decision of 5 May 2011 case file I ACz 671/11 decided to secure the claim of QXL. The Court prohibited the Foundation and Jerzy Masłowski from transmitting and disseminating on their websites of any publications or materials containing the questioned trade mark.
The District Court in Warsaw in its judgment of 13 March 2013 case file XXIV C 1035/10 ruled that the “Zielone Światło” (Green Light) Foundation infringed personal rights of Allegro, such as reputation and fame. The Court decided that the demonstrations against the sale of Nazi memorabilia and interference with the logo of the portal were too excessive and bore the risk of linking the portal with Nazi organizations. The judgment is not final.
Trade mark law, case II GSK 2324/11
October 5th, 2012, Tomasz RychlickiJulius Sämann Ltd., the owner of the figurative trade mark WUNDERBAUM IR-0579396, filed a notice of opposition to a final decision of the Polish Patent Office on the grant of a right of protection for the word-figurative trade mark Forest Fresh R-183901 owned by S&S Smiczek & Smiczek Hanna Smiczek. Both trade marks were registered for similar goods in Class 5, mainly air freshening products. Julius Sämann Ltd. claimed that because of the similarity of goods there is a risk of misleading the public, in particular by evoking associations with the earlier mark. The company provided also evidence on reputation of its trade mark.
The Polish Patent Office invalidated the right of protection. The PPO decided that three required conditions had to be cumulatively met in this case: i) the reputation of the earlier mark, ii) the similarity or identity of signs, iii) if it without due cause would bring unfair advantage to the owner of the later trade mark or be detrimental to the distinctive character or the repute of the earlier trademark. The PPO noted that the case law distinguishes between absolute and relative methods of assessing reputation. The first one considers knowledge of the mark and takes into account primarily the percentage of a certain degree of its recognition on the market. The relative method emphasizes different criteria, including the degree of the recognition of the trade mark, the market share in terms of quantity and value of goods sold, the extent and duration of product advertisements marked by the sign, territorial and temporal scope of its use, licenses granted, quality of the goods, the value of the sign in the evaluation of independent financial institutions, the size of expenditures incurred in connection with the promotion of trade, as well as relationship price of substitute goods. The evidence material can be public opinion polls, prizes and awards, press releases, ratings, reports, invoices and other commercial documents, as well as various promotional materials. The Polish Patent Office has adopted a mixed methodology in this case, and ruled that both the evidence on reputation, that was claimed and established before the date of application of the contested trade mark, as well as documents from the later period, strengthen the recognition of reputation of the trade mark WUNDERBAUM IR-0579396. The PPO decided that both trade marks are similar in visual, aural and conceptual aspects. The PPO noted that the market presence and existence of a trade mark which consumers associate with reputation of another sign, harm the interest of the owner. S&S Smiczek & Smiczek Hanna Smiczek filed a complaint against this decision.
The Voivodeship Administrative Court in Warsaw in its judgment of 2 June 2011 case file VI SA/Wa 334/11 dismissed it. The Court agreed with the the assessment of the PPO, and repeated that an entrepreneur, who for the goods of the same type, chooses a sign that is similar to a trade mark with earlier priority, given that there is an infinite number of signs to be selected, acts at its own risk. S&S Smiczek & Smiczek Hanna Smiczek brought a cassation comaplaint.
The Supreme Administrative Court in its judgment of 10 July 2012 case file II GSK 2324/11 repealed the contested judgment and returned it to the VAC for further reconsideration. The Court held that the important drawback of the contested judgment and the decision of the PPO was the assumption on the similarity of the opposed trade marks that was based on the mere fact of the use in their visual aspect, a form of tree, without trying to examine whether the different presentation, including the type and shape of the tree, used in these signs, allowed for the adoption of the view that there exists the similarity of the signs. As a result, the Polish Patent Office, followed by the VAC, accepted the monopoly (exclusiveness) of the company to use very idea of the tree element in its trade mark. The SAC recommended that the VAC should also take a stand on the consequences of the fact that S&S Smiczek & Smiczek Hanna Smiczek used its trade mark for a considerable period of time from 2002. After almost 5 years, Julius Sämann Ltd. initiated a civil action against the S&A. The civil proceedings with regard to trade mark infringement ended before the Supreme Court in its judgment of 14 October 2009 case file V CSK 102/09. The Supreme Court dismissing a cassation appeal filed by Julius Sämann Ltd., based on the argument that long-standing and undisturbed use of the sign in question, in connection with the principle venire contra factum proprium, according to which, if the party continued at a specific practice, it can not rely on its illegality, if other entity accepted such practice in good faith and it could suffer injury as a result of the changes. The application of this rule would come into play especially in a situation, if after the reexamination of evidence, the similarity of opposed signs has been established, and there was not any proof of bad faith on S&S side. The argument that there was bad faith requires evidence and proof, because good faith is presumed. Whether, in connection with long-term use, the S&S trade mark has acquired distinctiveness under average conditions of the market, a feature which is required for any sign to be registered, could speak in favor of the principle of venire contra factum proprium. In addition, marking the goods produced by S&S with its own trade mark, which are the goods of the same kind as products of Julius Sämann Ltd., undoubtedly positively affected the overall demand for such goods on the marker. Therefore, the invalidation of S&S trade mark in situation of its use in good faith, could easily lead to the acquisition of the customers of S&S by Julius Sämann Ltd., without incurring the costs which were attended by S&S in the promotion of the sign, The Court found it difficult to accept. The SAC also held that it should be borne in mind that the right of protection for a trade mark, as every object in the closed list (numerus clasus) of property rights, is admittedly an absolute personal right effective against all (erga omnes), however, this right is not subject to absolute protection. In the light of the general principles for the exercise of property rights as defined in the Polish Civil Code, the boundaries of this right are defined in the Acts and the rules of social coexistence. The Polish Industrial Property Law also refers to these rules. For these reasons, the circumstances giving rise to the allegation of the infringement of the principle of venire contra factum proprium, are one of the limits to the exercise by the owner of its legitimate socio-economic use of the right of protection that derives from the registration of the trade mark. Thus, the invalidation proceedings started against the trade mark Forest Fresh R-183901, in violation of the above mentioned principle, may be considered as the abuse of the right of protection for a trade mark by the proprietor of such a right, that is not entitled to the protection.
Consumer protection, case XVII Amc 5817/11
August 26th, 2012, Tomasz RychlickiThe Polish Court of Competition and Consumer Protection in its judgment of 31 May 2012 case file XVII Amc 5817/11 held that an entrepreneur cannot include in its terms of telecommunication services any regulations and provisions which would release it from the liability for any loss due to lack of customer access to the service provided. Activities that intend to misinformation, confusion, misconception or are directed to exploit ignorance or naivety of the customers and consumers, are contrary to good customs.
Personal interests, case I C 116/12
August 9th, 2012, Tomasz RychlickiEryk Schuman wrote an article regarding Klaudiusz Sevkovic who is an alderman of Chorzów city and also the president of the local handball club. This critical piece appeared at dlachorzowa.pl website. According Mr Schuman, the data given in the declaration of interests of the alderman, could indicate that Mr Sevkovic uses the communal property in his private economic activities. Sevkovic filed a suit for the protection of his personal interests. He argued that the article overstated the amount of cash taken from the club. Mr Schuman wrote that the alderman took 275 thousand PLN (Schuman used the abbreviation “tys.” which stands for thousand in Polish) for a contract work. The journalist referred to a statement of financial interests filed by Sevkovic. However, the amount disclosed in the statement was 275 PLN not 275 tys. PLN. Schuman argued that it was an unintentional mistake in the text, and it was corrected immediately after he noticed it. He noted that the goal of the article was to draw attention to irregularities of the activities of alderman. Meanwhile, Sevkovic argued that such false information was visible on at least for two weeks and it was removed only after sending a letter to the editor to request a correction, and to publish an apology, which, however, never appeared on the website.
The District Court in Katowice in its judgment of 6 August 2012 case file I C 116/12 ruled that Eryk Schuman infringed Mr Sevkovic’s personal interest. The Court noted that the article served to undermine the credibility and good name of Sevkovic in the public opinion. The Court did not consider the text in question as a “typographical error”.
Tax law, case I SA/Łd 657/12
August 2nd, 2012, Tomasz RychlickiThe Voivodeship Administrative Court in Łódź in its judgment of 29 June 2012 case file I SA/Łd 657/12 held that the agreement that provides the website to use for advertisers is deemed as the unnamed contract and is similar in its provisions to a contract of tenancy as defined in the Article 693 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.
Article 693. § 1. By a contract of tenancy, the landlord shall assume the obligation to give a thing to the tenant for use and the collection of fruits for definite or indefinite time, and the tenant shall assume the obligation to pay to the landlord the rent agreed upon.
The Court decided that the income from advertising should be taxed like tenancy contracts or leases, which allows a taxpayer to choose a lump sum settlement on registered revenues.
Personal interests, case I C 407/12
August 1st, 2012, Tomasz RychlickiFS File Solutions Ltd. is the owner of a popular hosting website chomikuj.pl that allows for hosting different files by using a simple web interface. The Polish Chamber of Books (PCB) is Poland’s publishing industry trade body that found many of its titles available on chomikuj.pl without the permission of copyright holders. The PCB issued negative press and TV statements regarding chomiku.pl policy and business model. The Company sued the PCB for the infringement of its personal interests. FS claimed that by calling it “pirate service” the PCB infringed on its the company name (firm).
The District Court in Warszawa I Civil Chamber in its judgment of 20 February 2013 case file I C 407/12 ruled that PCB did not infringed personal interests of FS.
Trade mark law, case VI SA/Wa 1222/11
June 12th, 2012, Tomasz RychlickiOn January 2000, the Polish Patent Office registered the trade mark DACH-BUD PERDKOWIE R-116968 for goods in Class 19 and services in Class 37. This sign was applied for by Polish entrepreneurs Krzysztof Perdek and Zbigniew Perdek Zakład Ogólnobudowlany DACH-BUD in 1996. Przedsiębiorstwo Budownictwa Ogólnego DACH BUD Spółka z o.o. from Wrocław filed a request for invalidation. DACH BUD argued that at the time of trade mark application, it was the only business that has used the sign DACH BUD as its company name. In 2002, one of the shareholders of the present company DACH BUD Spółka z o.o., has filed a request for invalidation, but it was dismissed by the PPO and the Voivodeship Administrative Court in its judgment of 22 December 2005 case file VI SA/Wa 337/05.
Also in this case, the PPO dismissed the request and decided that the proceedings were separate and independent in relation to proceedings that were held before on the request of the predecessor of DACH BUD. According to the PPO, the request based on the provisions of Article 8(2) of the old Polish Act of 31 January 1985 on Trade Marks – TMA – (in Polish: Ustawa o znakach towarowych), published in Journal of Laws (Dziennik Ustaw) No 5, item 15, with subsequent amendments, was unjustified, and there were no grounds to invalidate the right of protection. That provision states that the registration of a sign which infringes personal or property rights of third parties, has to be refused. All the personal interests that are protected under the provisions of the Polish Civil Code, are identified among the rights of a personal nature. The name (firm) of the limited liability company (spółka z ograniczoną odpowiedzialnością) is the name under which the company is established according to the provisions of the Polish Code of Commercial Companies. The name of business/entrepreneur is treated as its personal right and as such is protected as the right to company name. According to legal commentators, it is an absolute personal right of an entrepreneur, and it is effective, erga omnes, against all. Its content is defined as the ability to use the company name to identify business/entrepreneurs on the market. The company name of a private person or entrepreneurs acting as a commercial companies, is not transferable. The Polish legal doctrine and case law established the view that the registration of a sign that is corresponding to the designation of another entrepreneur, that was used before the registration of that trade mark, affects the personal interests of such entrepreneur. However, that interference in the sphere of personal property, and more specifically – in the right to the name of the entrepreneur, may also occur in case of use of the part of that name, if it is a part that is fulfilling the function that sufficiently individualize an entity, i.e. that allows to uniquely identify and distinguish the company from other private or legal (corporate) persons. The PPO ruled that a similar position should be adopted in case of registration of a figurative sign, which in the word element contains the company name (firm) of another entity, or a significant part of it. The PPO noted that the company did not exist at the filing date of the disputed trade mark, and it could not effectively rely on the infringement of its right to the company name by the disputed sign, Therefore, if the applicant’s right was not the right “with a better priority”, there were no grounds to consider the request. In the opinion of the PPO, in the exercise of its personal interests, the applicant could rely only on the right enjoyed by it exclusively, and not by others. In particular, the company could not claim and invoke any right that was enjoyed by its shareholder – a private person. DACH BUD Spółka z o.o. filed a complaint against this decision.
The Voivodeship Administrative Court in Warsaw in its judgment of 18 January 2012 case file VI SA/Wa 1222/11 agreed with the PPO and dismissed it. The Court noted that in case of conflict of rights, in this case, the protection right for a trade mark with a personal interest that includes the right to company name, the priority is to protect the personal interest. However, the registration of a trade mark that is identical or similar to a company name does not prejudge the infringement of the right to a company name. This exclusive right is not a total absolute. Its limits are defined by the coverage (territorial and goals) and the time of actual activities of the entity that is using the name. The collision between identical or similar company name and a trade mark may occur only within these limits. This judgment is not final yet.
Internet domains, case III CSK 120/11
May 15th, 2012, Tomasz RychlickiMEDianus sp. z o.o. and Medianus Agencja Reklamowa sp. z o.o. are seated in the same city, at a location nearby. The first one uses medianus.net domain name and the second medianus.pl. The first company was entered in the Register of Business Entities in the National Court Register (KRS) as MEDianus in June 2003 r. The second one was entered in 2009. MEDianus sp. z o.o. filed a complaint, to prohibit the other company to use the name “medianus” in the company name and as a domain name, based on the provisions of Article 3 and 5 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), published in Journal of Laws (Dziennik Ustaw) No. 47, item 211, with subsequent amendments. MEDianus sp. z o.o. argued the the use of the same company name caused many confusions with delivery of post or invoices.
The District Court dismissed all claims. However, the Appellate Court in Kraków agreed with MEDianus sp. z o.o. appeal and ordered Medianus Agencja Reklamowa to change its company name and website and to publish an apology in two national newspapers.
The Polish Supreme Court in its judgment of 9 December 2011 case file III CSK 120/11 dismissed the complaint filed by Medianus Agencja Reklamowa. The Court held that in order to apply the provisions of Article 5 of the CUC, both companies have to be in competitive relationship. This situation happens when there is a risk of confusion with regard to the identity of entrepreneurs. The Court also confirmed that the so-called cybersquatting is an unnamed delict (tort) under the Polish law on combating unfair competition.
See also “Polish case law on domain names“.
Personal interest, case II C 626/11
April 27th, 2012, Tomasz RychlickiIn 2007, for about 6 months, the Polish Central Anti-corruption Bureau collected telecommunications data, including billings and location data from Base Transceiver Stations, of a Polish journalist Bogdan Wróblewski. Mr Wróblewski sued the Polish State Treasury which according to the Polish law represents the Polish state in certain legal aspects..
The District Court in Warsaw in its judgment of 26 April 2012 case file II C 626/11 has confirmed that the Central Anti-corruption Bureau violated personal interests of a journalist by collecting his telecommunications data. The Court pointed out that privacy is a fundamental human right and its breach must be justified and proportionate. The permission is limited “objectively” to offenses of corruption and “qualitatively” – its condition should be determined by the fact that there are not available less invasive means of control which could be useful. The process of receiving of telecommunications data must take into account these limitations each time it is initiated.
Personal interest, case I CSK 111/11
March 25th, 2012, Tomasz RychlickiCezary Pazura sued Grupa o2, the owner and publisher of pudelek.pl website. Mr Pazura claimed that the company infringed his dignity, the inviolability of the home, privacy and publicity, by publishing 17 articles that concerned his relationship with Edyta Zajac, then fiancee, and now his wife. He argued that comments like “his mistress was no longer pretending, what she meant?”, “oldish playboy” were clear examples of the infringement. The District Court agreed with Mr Pazura, but Grupa o2 appealled, and the Appellate Court reversed the contested judgment and dismissed the suit. Mr Pazura filed a cassation complaint.
The Supreme Court in its judgment of 14 December 2011 case file I CSK 111/11 repealed the contested decision and returned it to the Appellate Court for further reconsideration. The Court held that the public status of a person does not automatically mean that his or her private life becomes also a “public life”. The Court clarified the understanding of the provision of Article 14(6) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.
It is not allowed to publish information and data concerning the private sphere of life without the consent of the person concerned, unless it is connected directly with the public activity of such a person.
The Court ruled that in this case it was necessary to demonstrate the relationship between the public activity carried out by Mr Pazura, and published image, or private information that was published on pudelek.pl website. Therefore, it had to be a relationship between a person’s behavior in the public sphere. In addition, the disclosure of such information should serve to protect specific, socially legitimate interest. Therefore, the primary task of the courts was to determine whether in this case, Mr. Pazura’s consent was granted, or whether it was not needed at all.
Civil law, case VI C 143/11
March 24th, 2012, Tomasz RychlickiThe Polish company InternetQ Poland Sp. z o.o. from Warszawa has sent text messages (SMS) to an unspecified group of people suggesting that they won prize of 20.000 PLN in some competition. The only tricky requirement was to send an empty text message as a reply. One of the recipients sued the company in order to force it to pay the prize. He based his claims on the provisions of Articles 353 and 354 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments
Article 353. § 1. An obligation shall consist in that the creditor may demand a performance from the debtor, and the debtor is obliged to provide the performance.
§ 2. The performance may consist in act or omission.Article 3531. The parties to a contract may arrange the legal relationship as they deem proper on the condition that the contents or the purpose of that contract are not contrary to the nature of the relationship, with statutory law, and with the principles of community life.
Article 354. § 1. The debtor must discharge his obligation in accordance with its contents and in a manner complying with its socioeconomic purpose and the principles of community life, and if there are established customs in that respect, also in a manner complying with those customs.
§ 2. The creditor shall be obliged to co-operate in the discharge of the obligation in the same way.
The Regional Court in Warszawa for Warszawa-Śródmieście in its judgment of 3 November 2011 case file VI C 143/11 held that consumer’s claims are well founded and awarded on his behalf 60.000 PLN. InternetQ filed an appeal.
Personal interest, case III C 202/09
March 12th, 2012, Tomasz RychlickiArnold Buzdygan sued Agora S.A. the owner and publisher of kobieta.gazeta.pl website, claiming that the company infringed his personal interest by publishing an online article entitled “Trolls – Internet’s vexatious personas” in which his name was mentioned. The District Court in Warsaw in its judgment of 12 December 2011 case file III C 202/09 dismissed the complaint and ruled that the criteria of the infringement of personal interests should be based on objective rather than subjective circumstances that usually arise from the feelings of the person concerned. The objective response of public opinion is more important in such case. The Court noted that Mr Buzdygan is a public person whose opinions and statements were subject to criticism by other users. Such negative comments were directed to his activities and comments posted on the Internet, and not directly against him.
See also “Computer crime, case V K 1595/08” and “Personal interest, case I ACa 949/09“.
Personal interest, case IX GC 367/11
February 27th, 2012, Tomasz RychlickiThe company Polska Wódka (in English: Polish Vodka) from Warsaw sued two other companies Wódka Polska sp. z o. o. and Wódka Polska sp. komandytowa from Lublin (both companies are lined with Stock Spirits, former Polmos Lublin) for the infringement of the company name based on the regulations included in the Polish Civil Code that provides that the company name of the entrepreneur should differ sufficiently from the company names of other entrepreneurs that carry on their activities on the same market. The company name may not be misleading, in particular as regards the entrepreneur’s person, the object of their activity, place of activity and supply sources, and the Polish Act on Combating Unfair Competition which treats the use of the designation of the undertaking in a way which may mislead customers in relation to its identity, based on the use of trade mark, name, emblem, letter abbreviation or another characteristic symbol already lawfully used to indicate another undertaking, as the act of unfair competition.
Polska Wódka claimed that it has the priority to its company name based on the entry in the Register of Business Entities in the National Court Register (KRS). The name of Warsaw’s company was entered in 2003, and the company names of Lublin’s entities were entered accordingly in 2005 and 2009. Polska Wódka argued that both sued companies act intentionally in order to mislead other market participants.
Both defendants did not agree with the suit and argued that they obtained the right to use their company names under final and binging decisions of the registration court, and noted that Polska Wódka does not proved that it performs any business activity under its company name because there are no annual reports in the KRS that would serve as proof of use.
The District Court in Lublin in its judgment case file IX GC 367/11 dismissed the suit as unfounded. The Court agreed that the company from Warsaw was the first one to start the use of the questioned name, however, it did not provided any evidence of its use in order to prove the confusion of other market participants. The Court also ruled that the protection if afforded to designation that are put in genuine use, not to these that were only registered in the KRS. Finally, the Court noted that the name Polska wódka (Polish vodka) is descriptive term related to a product name that is connected with a specific business activity, and it cannot be appropriated by single company. The Court ruled that Polish vodka is a designation that should be in the public domain, in order to be available for different entities which wish to use such name for their products. The judgment is not final yet.
Consumer protection, case XVII Amc 113/11
December 29th, 2011, Tomasz RychlickiThe provision of the Rules of the Municipal Public Library in Słupsk stated that the Library may allow for reproductions or digital reproductions of one publishing volume sheet, which is approx. 22 pages of A4 format, of any documents protected by copyright law that are in the collection of the Library. However, such rules are contrary to the provisions of Article 23 of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.
Section 3
Lawful Use of Protected Works
Art. 23.-1. It shall be permissible, without the consent of the creator, to make use free of charge, of a work that has already been disclosed. However, this provision shall not authorize the construction of a building based on an architectural work or a work of urban architecture made by another person.
2. Personal use shall extend to use within a circle of persons who are personally related, in particular by blood or marriage, or who entertain social relations.
The Polish Court of Competition and Consumer Protection in its judgment of 9 December 2011 case file XVII AmC 113/11 held that such rule is prohibited and deemed as a wrongful contractual provision, as defined in the Article 3851 § 1 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.
Article 3851. § 1. Provisions of a contract concluded with a consumer, which have not been individually agreed with him, shall not be binding thereupon, if his rights and duties have been stipulated in conflict with public decency and in flagrant violation of his interest (wrongful contractual provisions). This shall not relate to the provisions which specify basic performances of the parties, including the price and remuneration if determined explicitly.
§ 2. Where the provision referred to in paragraph 1 is not binding upon the consumer, the parties shall be bound by the remaining provisions of the contract.
§ 3. The provisions not agreed individually shall be such provisions of the contract over which the consumer had no actual influence. It shall concern, in particular, the provisions of the contract taken over from the model form of contract offered to a consumer by a contracting party.
§ 4. The burden of evidence to prove that the provision has been agreed individually shall be borne by the party who claims so.
The Court held that the Library cannot decide on limits of copying of any of the library collections. Copying books without limitation of the maximum number of pages is legally permissible. The provisions of the ARNR do not indicate any limits. Such a judgment come as no surprise, because every person who is in possession of any reprographic devices and conducts economic activities within the scope of reproduction of works for the personal use of third parties, is according to the provisons of article 201 of the ARNR obliged to pay, through a Collection Society, fees at up to 3% of proceeds generated from such activities, to authors and publishers, unless the reproduction is done on the basis of a contract signed with a rightholder. Such fees are paid to authors and publishers in equal parts.
Personal interest, case IV CSK 665/10
November 7th, 2011, Tomasz RychlickiWriting 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.
Personal interest, case II SA/Wa 364/11
October 13th, 2011, Tomasz RychlickiOn January 2010, a couple of 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 on 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.
See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.
Personal interests, case I CSK 743/10
October 8th, 2011, Tomasz RychlickiThe 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.
Personal interest, case I ACa 1273/11
October 3rd, 2011, Tomasz RychlickiMr Andrzej Jezior is a councillor of the Town Council in Ryglice, and he also runs a personal website available at andrzejjezior.blog.onet.pl. He often post comments regarding affairs of local life of the young Ryglice town. Some readers of his website posted negative comments on Bernard Karasiewicz, who was at this time the mayor of this small town. Despite the fact that Mr Jezior removed these comments, Mr Karasiewicz sued for violation of his personal interest. The suit was based on regulations included in the Polish Act on Elections to municipal councils, county councils and regional assemblies, in connection with regulations included in the Polish Act on the direct elections of village-mayor (prefect), town mayor, president of a city.
The District Court in Tarnów in its order of 15 November 2010 case file I Ns 162/10 agreed with the mayor and ordered Mr Jezior to publish an apology on his website, prohibited him from further distribution of these comments and ordered him to pay 5000 PLN for Caritas of the Tarnowska diocese and the case expenses in the amount of 240 PLN. The Court ruled, that Mr Jezior should be held liable for the comments that appeared on his website, because they came from people enjoying freedom of expression. Running a website that allows for posting such comments should be considered a wrongful action that is contrary to public policy and the principles of social coexistence. Mr Jezior appealed.
The Appeallate Court in Krakow in its order of 17 November 2010 case file Acz 1457/10 dismissed the complaint.
Mr Karasiewicz lost local elections in 2010. He sued Mr Jezior for violation of his personal interest again, alleging the comments caused that he was not re-elected to serve as a mayor of Ryglice. This time the suit was based on the regulations included in the Civil Code.
The District Court in Tarnów in its judgment of 3 October 2011 case file I C 319/11 ordered the defendant to publish an apology in the local press for “distributing” content that infringes upon the personal interests of the plaintiff and his family, to pay 1000 PLN compensation and reimbursement of the proceeding costs in the amount of 650 PLN. The Court dismissed the claim where the plaintiff demanded the payment of compensation in the amount of 10.000 PLN. The Court ruled that defendant is responsible and he should bear the consequences that he has made a forum that was available for the publication of any message. Mr Jezior appealed. The Appeallate Court in Kraków in its judgment of 19 January 2012 case file I ACa 1273/11 reversed the judgment of the District Court and dismissed the suit.
Personal interests, case III CSK 73/07
July 24th, 2011, Tomasz RychlickiProfessor Andrzej Gregosiewicz posted very negative press articles and comments regarding homeopathic medicines, in particulr Oscillococcinum preparation that is produced by the French company Boiron. He also criticized regulations included in the Polish Pharmaceutical law. His publications were also available on different websites. These articles and comments included, among others, statements that homeopathic medicines may carry bird flu virus HN51, Professor Gregosiewicz argued that taking some homeopathic medicines is similar to suicide. He has named Oscillococcinum as the most widely used homeopathic product with the bird flu virus, and claimed that its producer was involved in bribery during the legislative process, in order to gain favourable regulations. Boiron Societé Anonyme sued for the infringement of personal interest. The case went through all instances.
The Supreme Court in its judgment of 10 May 2007 case file III CSK 73/07 held that the belief that someone is using the constitutionally guaranteed freedom of expression and he acts in the interest of public health is not a sufficient basis to consider certain actions as repealing the illegality of expression.
Personal interest, case I OSK 1217/10
July 4th, 2011, Tomasz RychlickiThe Inspector General for Personal Data Protection (GIODO) ordered Axel Springer Polska to disclose addresses of three authors who wrote a critical article in “Dziennik” newspaper about Polish businessman, however, information presented in the article proved to be incorrect. He wanted to sue all authors but Axel Springer refused to provide addresses, therefore, the lack of addresses of the defendants in the lawsuit was the reason for the civil court to dismiss the action.
Axel Springer Polska filed a complaint against the decision of the GIODO but the Voivodeship Administrtive Court in its judgment of 8 April 2010 case file II SA/Wa 1488/09 dismissed it. Axel Springer filed a cassation complaint.
The Supreme Administrative Court in its judgment of 18 June 2011 case file I OSK 1217/10 ruled that if the addresses of journalists are required to bring an action for the protection of personal interest, the publisher must disclose them to the requesting party.
Personal interest, case I ACz 462/11
June 20th, 2011, Tomasz RychlickiA Polish Internet user has started a Facebook account in which he accused a travel agency Alfa Star from Radom of dishonesty and presented bad reviews of its services. Other Facebook users also started to post negative comments. The travel agency filed a suit for protection of personal interest together with the injunction to delete the Facebook account along with all the comments until the final decision in the case is rendered. The District Court in Radom granted the injunctive relief. Bartosz C. filed a complaint against this decision. The Appellate Court in Lublin in its order of 30 May 2011 case file I ACz 462/11 reversed the injunction. The Court noted that although the company has shown its interest in granting the injunction, it also seek this way to satisfy all claims included in the suit. If, before the end of the proceeding, the company would obtain the injunction to remove an account, this would actually satisfy its claims. The Court noted that the injunction should be granted to the extent that the plaintiff is afforded the adequate legal protection, and the defendant it not burden more than it’s needed. Facebook allows for the deactivation of an account and such injunction should be considered by the District Court as adequate injunction.
Personal data protection, I OSK 1086/10
June 3rd, 2011, Tomasz RychlickiThe Supreme Administrative Court in its judgment of 19 May 2011 case file I OSK 1086/10 acknowledged the principle that in case of a disclosure of personal data in the media, the press law and civil law regulations are applicable, and not the provisions of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments.
See also “Polish regulations on personal data protection” and “Polish case law on personal data protection“.
Personal interest, case I C 1050/09
June 3rd, 2011, Tomasz RychlickiPaweł Wodniak, journalist of the website “Fakty Oświęcim” was sued by Artur Kierczyński for violation of his personal interest. Mr Wodniak prepared a short video report in which presented testimonials of Broszkowice citizens, who participated in blocking the road 933 in a protest against a nearby gravel-pit from being functional. The report also contained footage of Marian Gołąb, who was the Mayor of Broszkowice, stating that there is already a criminal investigation underway on the ex-owner of the gravel-pit. Mr Gołąb released full name of Artur Kierczyński. Mr Kierczyński sued for violation of personal interest for releasing his full surname while there was an ongoing criminal trial against him. In his opinion, Mr Wodniak’s behavior breached the rule of alleged innocence and it was a breach of Article 13(2) of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets.
One cannot publish in the media personal information and images of individuals, against whom there is an ongoing preparatory proceedings or court proceeding as well as personal information and images of witnesses, wounded and hurt, unless these persons agree to it.
The District Court in Kraków in its judgment case file I C 1050/09 dismissed the lawsuit. The Court ruled that a news report that merely mentions an individual’s involvement in a criminal proceeding does not constitute a violation of the above mentioned regulations on Press Law, the rule of innocence, or journalism ethics.