The Supreme Court in its order of 23 March 2016 case file III CZP 102/15 answered important questions related to minutes of hearing that were recorded as electronic/digital versions. The Regional Court decided a case related to payment, while some doubts as to interpretation of law related to recording of minutes and evidence, arose. The Supreme Court held that the transcription of the minutes that were recorded as sound and video is not an official document according to the provisions of the Civil Proceedings Code – CPC – (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments, and as such cannot be used for findings related to court’s session. If the minutes recorded as audio and/or audio and video do not allow to determine the content of evidence, the Court has to repeat an action related to this step. On an appeal, there is no need for the applicant to indicate a specific part of the sound recording (or video and audio) that relates to action of taking an evidence.
Archive for: Polish Constitution
The Appeallate Court in Warsaw in its judgment of 16 December 2015 case file I ACa 142/15 decided a case of a Polish rockman who sued a tabloid newspaper for publishing online article that infringed his personal interests. The Court found the journalist and author of the article liable and ordered him to publish apology and to pay proper compensation. However, the Court dismissed the claim that would order the publisher to remove the article from newspaper’s website. The Court ruled that the role of the judicial authorities is not to participate in the falsification of history by ordering the removal from the public sphere of all traces of publications recognized in the past by the final judicial decisions as unjustifiable attack on the good name of individuals. Accordingly, a proportional and adequate form of protection for the plaintiff would by be amending online defamatory publications with a relevant footnote, comment or link to information about the outcome of the proceedings.
The District Court in Wrocław in its judgment of 27 March 2014 case file I C 988/13 ruled that the provisions Article 15 of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments, exempts ISPs from the preventive moderation (approval) of comments posted by website and forum users.
The entity, which provides services specified in art. 12 – 14, shall not be obliged to monitor the data referred to in art. 12 – 14, which are transmitted, stored or made available by that entity.
The Court ruled that the lack of implementation of a control and content filtering system for profanity comments cannot prejudge the responsibility of the defendant, because preventive censorship would lead to infringement of the right to freedom of expression. The decision on the scope and priority of protected and conflicting rights, while accepting the obligation to adopt preventive control of information posted on a website and bonding the liability of the provider with the lack of such system, would constitute an excessive interference in the need of protection for different rights and interests, while simultaneously threatening freedom of expression.
The Supreme Court in its judgment of 8 November 2012 case file I CSK 190/12 held that without a doubt, the first name and surname constitute personal data of the individual, therefore, the important question arose, whether they belong to the scope of the individual’s privacy as understood in the provisions of Article 5(2) of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.
Article 5. 1. The right to public information is subject to limitation to the extent and on the principles defined in the provisions on the protection of confidential information and on the protection of other secrets being statutorily protected.
2. The right to public information is subject to limitation in relation to privacy of a natural person or the secret of an entrepreneur. The limitation does not relate to the information on persons performing public functions, being connected with performing these functions, including the conditions of entrusting and performing these functions and in the event when a natural person or entrepreneur resigns from the right to which he was entitled to.
Previous opinions of the Supreme Court on the relationship between the right to protect of personal data and the right to privacy are not clear. They were formulated mainly from the point of view of the protection of personal interests as defined in Articles 23 and 24 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.
The personal interests of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.
§ 1 The person whose personal rights are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.
§ 2 If as the result of a breach of personal rights one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.
The Supreme Court in its judgment of 15 February 2008 case file I CSK 358/07 (published in OSNC 2009, no. 4, item 63) ruled that legal commentators and case law of the Constitutional Court agree that the right to protect of personal data is derived directly from personal rights such as human dignity and the right to privacy, citing judgments of the Polish Constitutional Tribunal of 19 February 2002 case file U 3/01 (published in OTK-A 2002, no. 1, item 3) and of 12 November 2002 case file SK 40/01 (published in OTK-A 2002, no. 6, item 81). Nowadays, the collection and processing of the personal data is technically relatively simple, therefore it is necessary to protect a person against uncontrolled collection and use of his or her personal data, often without the contribution or even awareness of the person concerned. For these reasons, the legislator specifically regulated the issues of data collection, processing, use and protection of personal data in the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), published in Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments. While interpreting its provisions, one cannot ignore the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and its preamble that explicitly states that data-processing systems are designed to serve man, whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy. The Supreme Court in its judgment of 28 April 2004 III CK 442/02 (unpublished) stressed that when assessing whether there has been the breach of privacy protected by the law, this concept cannot be absolutized due to the degree of its generality, it requires interpretation, taking into account the specific circumstances of the situation. Events and circumstances that form the personal and family life can be classified as private sphere of life. The special nature of this area of man’s life justify the grant of its strong legal protection. However, this does not mean that any reference to a particular person was information in the field of his or her personal life. The regime of protection of privacy and personal data protection regime are therefore independent. Undoubtedly, when it comes to the relationships and the impact of these regimes, because in certain situations, the actual processing of personal data may result in a violation of personal interests in the form of the right to privacy, or protection of the right to privacy will required the objection to the use of personal data. It is difficult to unequivocally determine whether the disclosure of the first name and the surname of an individual by a local government violates his or her right to privacy. This problem can be resolved only while assessing particular circumstances of each case. In this case, the city was requested to disclose the names of individuals with whom it has entered into a contract of mandate and contract of work. One of these contracts concerned preparation and delivery of a lecture. It was difficult for the Court to accept that anonymization and hiding of the surname of a person giving such a lecture would have any meaning. Other agreements related to use of the electronic system of sociological analysis and organization of the conference. They were entered by specific individuals with a public body, which was the city. These people had to reckon with the fact that their personal data will not remain anonymous. For a person requesting access to public information related contracts entered by a local authority, names of parties to such agreements are often more important than the content, and it is understandable for obvious reasons. It would be difficult in this case to defend the view that the disclosure of names of people in the present context would be deemed as a limitation on the exercise of constitutional freedoms and rights of these persons. It had therefore to be assumed, that the disclosure of the names of persons entering civil contracts with a local authority does not affect the right to privacy of those persons referred to in Article 5(2) of the API.
The Polish company Zakład Gospodarki Komunalnej Organizacja Odzysku Biosystem S.A. requested the Polish Patent Office to take a decision on the lapse of the right of protection for IR-653449 and IR-585713 trade marks registered for goods in the following Classes 1, 2, 3, 5, 6, 7, 8, 9, 11, 16, 20, 21, 24, 25, 29, 30, 32, 34, 35, 36, 39, 40, 42. Both trade marks are owned by Der Grüne Punkt Duales System Deutschland GmbH.
In support of its legal interest, Biosystem S.A. explained that it is one of more than 30 domestic companies that are specializing in recovery of certain categories of waste and like other market participants have the right to use the informational signs. While Rekpol S.A., being the sole licensee of Der Grüne Punkt Duales System Deutschland GmbH trade marks, is sending C&D letters to different businesses, including Biosystem S.A. According to Biosystem the questioned trade marks are spread and used among various companies and as the result of negligence of the owner and licensee these signs cannot fulfill the functions to designate the origin of a particular entrepreneur and have degenerated in respect of all goods and services and become a carrier of information in trade that the product bearing the mark shall be recovered.
The PPO decided that the Polish company had no legal interest (but only factual one) in all classes of goods since it produces none of the goods covered by the protection right (and it doesn’t not sell them), but only provides services related to recovery of certain categories of waste. The PPO only agreed that Biosystem S.A. has shown legal interest in seeking the lapse of the disputed trade mark registration in part, on all services (i.e., services included in Classes 35, 36, 39, 40, 42). In this respect, the PPO considered that the interest can be inferred from the principle of freedom of establishment guaranteed in the provisions of Article 20 of the Polish Constitution and Article 6 of the Act of 2 July 2004 on Freedom of Economic Activity. Biosystem filed a complaint against this decision.
The Voivodeship Administrative Court in its judgments of 15 April 2008 case file VI SA/Wa 1959/07 and VI SA/Wa 1960/07 held that the definition of waste and recycling, shows that waste are the goods. Thus, in the view of the Court it was possible to trade in such goods. The court held that it may be that the scope of activities of Biosystem S.A. include those goods. Hence the need to examine the legal interest in the classes of goods. Legal interest shall be tested at the beginning of hearings, therefore, the VAC did not address the merits of the dispute. The Court ruled that the repealed decisions of the Polish Patent Office should not be enforceable.
The Voivodeship Administrative Court has also decided on other PPO’s decisions with regard to IR-585714 and IR-653450 trade marks and held the same in its judgments of 24 April 2008 case file VI SA/Wa 1961/07 and VI SA/Wa 1962/07. All four cases went back to the Polish Patent Office.
Again, Biosystem argued that the characters have lost their distinctiveness, as they appear on millions of packages of goods from various manufacturers. The company cited a research institute Pentor that consumers do not identify these signs with a particular trader. They are applied by different manufacturers for packaging and currently only indicate that they are subject to disposal (safe for the environment). Biosystem claimed that information as such cannot serve as trade mark and the sign does not identify an entrepreneur.
Der Grüne Punkt-Duales System Deutschland and Rekopol noted that they were active in defending these trade marks against the lapse, because both companies warned many entrepreneurs, that Grüne Punkt trade marks cannot be used without a proper license. In this way, both companies care about the protection of the brand which excludes the possibility of the lapse due to lack of distinctive character. The Polish Industrial Property Law clearly states that the loss of the distinctive character must be the consequence of the owner’s acting or negligence.
The Adjudicative Board of the PPO in its decisions of July 2010 case no. Sp. 363/08 and case no. Sp. 433/08 and ruled on the lapse of the right of protection. The PPO agreed with the argument that Grüne Punkt trade marks became very popular in many markets, especially in Europe. According to the case file, there are around 95,000 licenses granted all over the world for their use, and for example, in Western Europe, they are placed on almost 91% of the packaging. Such method of placing trade marks on a variety of products that originate from different manufacturers does not meet the conditions of the genuine use of the mark in its function.
The Voivodeship Administrative Court in Warsaw in its two judgments of 9 March 2011 case file VI SA/Wa 2169/10 and case file VI SA/Wa 2171/10 dissmissed complaints filed by Der Grüne Punkt-Duales System and Rekopol. Both companies filed cassation complaints. The Supreme Administrative Court in its judgments of 21 November 2012 case file II GSK 1551/11 and case file II GSK 1646/11 dismissed them both which in consequence lead to the final lapse of both trade mark rights on the Polish territory.
In another case of Tomasz Zieliński, the author of transportoid.com service and software available for Android and Windows Phone that provides timetables of public municipal transport systems, the Voivodeship Administrative Court in Kraków in its judgment of 26 November 2012 case file II SAB/KR 152/12 ruled that source code that was used to create a website with public communication timetables is not deemed as public information.
The Association of Leaders of Local Civic Groups (SLLGO) requested the Polish Prime Minister Donald Tusk to disclose documents and the correspondence, including e-mails, that concerned recent legislative works on the amendments to the Polish Act on Access to Public Information. The Prime Minister disclosed part of the requested materials, but without indicated e-mails. The representative of the Prime Minister argued that e-mails are used to send text messages, they are used as internal correspondence in the office, as well as with external entities. E-mails consists of various documents of varying importance, significance and category (from the private and business). However, it is not a system of receiving and processing of official documents and the exchange of official correspondence, including these on the legislative process. The system serves for communications between certain individuals, rather than for the presentation of the official positions of the administration. The SLLGO filed a complaint and argued that the Prime Minister failed to act in order to disclose the requested information.
The Voivodeship Administrative Court in Warsaw in its judgment of 1 December 2012 case file II SAB/Wa 295/11 agreed with the SLLGO. The Court ruled that requested e-mails are not private, and they are used to exchange opinions, positions and evaluations between persons exercising public functions. There was no doubt that such electronic means were used for the evaluation and position with respect to the specific provisions of the Act amending the Act on Access to Public Information and other laws. The Court did not agree with the Prime Minister that such exchange of information was intended for internal use and it has working and preparatory nature. The Prime Minister filed a cassation complaint.
The Supreme Administrative Court in its judgment of 14 September 2012 case file I OSK 1203/12 annulled the contested judgment. The Court agreed with the PM and decided that e-mails are internal documents. This issue has been resolved in the same way by the Supreme Administrative Court in its judgment of 21 June 2012 case file I OSK 666/12. See “E-access to public information, case I OSK 666/12“.
Edwin Góral, the Polish legal advisor (a profession similar to English solicitor), requested the Office of the Attorney General of the State Treasury to print at his own expense and sent him all the lawsuits and complaints filed by the Attorney General of the State Treasury Office in 2011, until 30 June. The President of the Office refused to disclose the requested information and decided that the Office of the Attorney General of the State Treasury is not an entity obligated to disclose public information, in particular, the documents produced by legal advisors who work for the Office and perform representation activities. Edwin Góral filed a comaplaint against this decision.
The Voivodeship Administrative Court in Warsaw in its judgment of 29 December 2011 case file II SAB/Wa 357/11 dismissed it. The Court ruled that even if the contents of suits, summons, statements of claims, writs are considered as public information, the provisions of Article 1(2) of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments, provides that their disclosure should be specified in separate laws. The disclosure of civil suits (petitions) is possible under the provisions of the Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No. 43, item 296, with subsequent amendments.
The Supreme Administrative Court in its judgment of 23 July 2012 case file I OSK 896/12 dismissed the cassation complaint. The Court noted that the announcement of judgment occurs in open court. Judgments, including decisions of the Polish Court of Competition and Consumer Protection, should be disclosed to the public by a court as provided in the CPC. Similarly, the right of access to the case file, to receive copies of or extracts is governed by the provisions of the Civil Proceedings Code. It should be noted that this is a completely different position to that adopted in the judgment of the Supreme Administrative Court of 11 August 2011 case file I OSK 933/11. See “Access to public information, case I OSK 933/11“.
On 5 February 2011, Bogusław Kler, a Polish patent and trade mark attorney, requested Anna Korbela, the President of the Polish Chamber of Patent Attorneys, to disclose information concerning, inter alia, copy of the audio recording of the National Convention of Patent Attorneys that was held in 2010. The President answered that such request should be dealt with and decided by the National Council of Patent Attorneys. Bogusław Kler filed a complaint for failure to act (administrative inaction). Mr Kler argued that the President did not properly consider his request or did not issue a refusal decision.
The Voivodeship Administrative Court in Warsaw in its judgment of 12 July 2011 case file II SAB/Wa 142/11 obliged the President of the Polish Chamber of Patent Attorneys to examine the application filed by Mr Kler. The Court found that the position of the President could not be accepted because it was is inconsistent. Once the President said that she did not remain inactive, because the request was passed to do another, appropriate body, and then later, she found that the requested information is not public information. Once the President announces that it hasn’t got the requested recordings, and then she states that Mr Kler may listen to them at the seat of the authority. The President filed a cassation complaint.
The Supreme Administrative Court in its judgment of 20 December 2011 case file I OSK 2026/11 dismissed it and ruled that information about the activities of the professional self-government of the Polish patent attorneys is a public information. It was indirectly interpreted from the provisions of Article 17 of the Polish Constitution, under whose self-governments may be created within a profession in which the public repose confidence, and such self-governments should concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, the public interest. This simply means that the activities of the government and its bodies fail within the meaning of a public character or matters, and such information concerning these activities – has the nature of public information.
On 18 December 2009, the National Rebirth of Poland (NOP), a nationalist political party, requested the District Court in Warsaw to enter changes in the Register of Political Parties (RPP) with regard to address and its members, and to register new additional figurative symbols associated with this party. The Court had doubts, whether applied symbols were consistent with the principles of the Polish Constitution which say that the existence of political parties and other organizations whose programmes are based upon totalitarian methods and the modes of activity of Nazism, fascism and communism, as well as those whose programmes or activities sanction racial or national hatred, the application of violence for the purpose of obtaining power or to influence the State policy, or provide for the secrecy of their own structure or membership, should be prohibited. The District Court requested the Polish Constitutional Tribunal to examine whether goals, rules and activities of the NOP that are resulting from the change of symbols, are in accordance with the Constitution.
The Constitutional Tribunal in its order of 6 April 2011 case file Pp 1/10 with fice dissenting opinions, decided to discontinue the proceedings, and ruled that it cannot decide on the merits of the case, because there was lack of evidence, and the District Court was required to examine if the applied signs contain fascist symbolism. However, the Tribunal emphasized that such circumstances cannot be presumed, because of the constitutional guarantees of freedom of association and freedom of expression and speech.
The District Court was bound by the interpretation, and therefore requested the additional materials, together with the expert opinions on whether applied signs contain clear symbolic that is racist, totalitarian, fascist or Nazi. The linguist and historian experts issued an opinion in which they declared that the symbol of the crowned eagle with a cross, with the lictors’ rods and ax, was first seen in the Ancient Rome, and this symbol does not involve a specific message. The party emphasizes a strong role of state and refers to the Imprerium Romanum. Fasces are only a small part of the whole symbol, so as such it has quite a different meaning. For instance, fasces are included in the modern coat of arms of France and USA. It would be difficult to accuse both states of promoting fascism. The Celtic cross symbolized the sun, but it was also accepted by the Church as one of the cross symbols, and by choosing this symbol, NOP refers to the Slavic, and even Catholic and Polish and National themes. The experts noted that the symbol stylized as a road sign indicates the prohibition of homosexual acts in public places, which is consistent with generally accepted morality. The Court repeated after the experts that it would be too social sensed to look for additional symbolic and meanings. Experts said that the sign is just tasteless and vulgar and violates the principles of etiquette, but it does not promote any prohibited content. The symbol of the Cross and Sword is the signs associated with the Knightly Order of the Cross and the Sword – Polish secret organization of Catholic and moral values, established at the end of the Second Polish Republic and active at the first years of German occupation. Experts decided that all the sign act as self-identification of members of a political party rather than promote illegal content.
The District Court in Warsaw in its order of 25 October 2011 case file VIII Ns Rej Ew Pzm 77/09 did not find any legal obstacles to register all the applied signs. Professor Irena Lipowicz, the Polish Ombudsman, and the District Prosecutor Office in Warsaw both appealed. The Ombudsman argued, inter alia, that the expert opinion was not clear, coherent and complete. The Prosecutor noted that there were procedural issues. Prof. Lipowicz argued that the Polish Act on Political Parties provides that a party is allowed to apply and register only one graphic/figurative element that would serve as the identification symbol for its voters, analogously as consumers of commercial products available on the market. Such a symbol will acquire protection similar to this afforded for personal interests. Granting of such legal protection, which does not serve as an identification of a political party, but is the manifestation of expression on other participants in social life, would lead to blockage of public debate. Such protection would also have a chilling effect on freedom of speech.
The Appellate Court in Warsaw decided that a political party cannot register more than one graphic symbol. The District Court in its order of 17 April 2012 ruled that it cannot enter additional symbols into the Register of Political Parties because NOP has already registered a number of other signs such as the so-called phalanx (the symbol of a hand with sword), and their excess would impede the statutory requirement of the recognition of the political party. Undoubtedly, these judgments met with strong criticism because of the lack of a clear opinion on hate speech. Basing the decision on the argument for the registration of only one symbol was somehow an “escape” by the Courts to decide on the most important principles of a democratic state.
On 22 November 2010, Bogusław Kler, a Polish patent and trade mark attorney, requested the President of the Polish Patent Office to disclose public information concerning the word trade mark PRINCE POLO R-148617, in order to know, whether during the examination, the trade mark POLO R-69429, or other marks containing this word were taken into account, and in particular, if the expert who was proceeding and examining the trade mark application, noted and listed any signs with the word “polo” in the examination card of the trade mark PRINCE POLO R-148617. In addition, Mr Kler requested for information on whether in a possible conflict between “Prince Polo” and the earlier “POLO” signs, the examiner considered any settlement actions of the owners of such trade marks, indicating that he is not requesting the full texts of documents, but seeking to confirm whether such documents if any, were submitted to the trade mark file and they were used in the assessment for the trade mark PRINCE POLO.
The President of the PPO expressed the opinion that the examination card of the trade mark PRINCE POLO R-148617 is not deemed as public information, because it is not directed the parties of the proceedings, and therefore it cannot be disclosed. With regard to information on materials concerning possible settlement between the trademark owners, the President explained that such information can be obtained by directly asking the entitled entities. At the same time, the President pointed out that decisions on the granting of exclusive rights belong to independent experts, and the requested filed by Mr Kler can be read as an unfounded and unjustifiable attempt to control of examinations conducted by experts and the procedures for the granting of exclusive rights. The President argued that such control process of the legality of decisions undertaken by the Polish Patent Office falls within the competence of administrative courts. The method of preparing and filing of the examination card of a trade mark is not regulated in any legislation being in force. Information to be included in it depends on the expert. The examination card is somehow a reflection of thinking of a person who was handling a given case.
Bogusław Kler filed a complaint for failure to act (administrative inaction). Mr Kler argued that the President of the PPO did not consider his request or did not issue a refusal decision.
The Voivodeship Administrative Court in its judgment of 13 May 2011 case file II SAB/Wa 88/11 dismissed the complaint. The VAC held that information requested by Mr Kler is not public, in particular, these are not public data. The Court held that the examination card is not an official document since it does not contain a declaration of will/intent or knowledge of a public official. Based on the card, it is not possible to unambiguously determine conditions, that were followed by the authority granting the right of protection for a trade mark. The card is a working internal document of the PPO, which provides information of operational activities aimed at a comprehensive assessment and examination of the validity and legitimacy for granting the protection of the sign applied for. Mr Kler filed a cassation complaint.
The Supreme Administrative Court in its judgment of 1 December 2011 case file I OSK 1550/11 repealed the contested judgment and returned it to the VAC for further reconsideration. The SAC held that according the Constitution of the Republic of Poland, a citizen should have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right should also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury. Limitations upon the right of information may be imposed by the Act solely to protect freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State. The principle of the “right to information” provided in the Constitution sets basic rules of interpretation of this right. It is a constitutional right, therefore, the law defining the procedures for access to information should be interpreted broadly, and any exceptions to this right should be construed and interpreted narrowly. This implies the use in relation to these acts of interpretation, which favor expanding rather than narrowing the obligation to disclose information. The enumeration, what is deemed as public information, is provided in the Polish Act on Access to Public Information, however this enumeration includes exemplary situations, and it does not cover all cases in which information is disclosed. The Court noted that public information is each information or data that was created or referred to the widely defined public authorities, or was created or referred to other entities performing public functions in the execution of tasks of public authority. The Supreme Administrative Court shared the view that all files of entire administrative proceedings conducted by a public authority, constitutes public information – including both documents created and held by the authority in connection with a particular case. Therefore, the Court held that, in principle, all that is in the file of the proceedings, regardless of whether it will be a public document or private, should be disclosed. It does not matter whether the document in the file is an “internal” or “working”. Even giving up the assumption that the whole proceedings constitute public information, it cannot be excluded that given documents from these files have such nature. In each case, every request for disclosure of public information requires a detailed analysis. Only as a result of such analysis, the authority should decide whether the requested information is public, followed by what standards govern the procedure of its disclosure.
The Supreme Administrative Court in its judgment of 29 November 2011 case file II GSK 1206/10 held that the provisions of Article 45(1) of the Constitution of the Republic of Poland provide that everyone should have the right to a fair and public hearing of his or her case, without undue delay, before a competent, impartial and independent court. These provisions include the principle that every court should decide a case without undue delay. This rule is also reflected, among others in the provisions of Article 7 the Polish Act of 30 August 2002 on Proceedings Before Administrative Courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi), published in Journal of Laws (Dziennik Ustaw) No 153, item 1270 with subsequent amendments, that the administrative court should undertake activities aimed at the rapid settlement of the matter of each case and seek to settle the case at the first hearing. In light of these provisions it should be clearly stated, however, that the principle of the speed of court proceedings is not a rule that could be given precedence over the right of the party to defend its rights and personal participation in the hearing, if the legislature included the possibility to postpone the hearing in specific situations. In this case, the Voivodeship Administrative Court in Warsaw improperly assessed the evidence that gave the reason to postpone of the hearing, which resulted in a breach of the right of parties to participate in the hearing and personal defense of their rights in legal proceedings. In consequence, the SAC ruled that there was a reason to decide on the nullity of proceedings.
The Constitutional Tribunal in its judgment of 14 December 2011 case file SK 42/09 held that criminal sanctions for failure to register a daily newspaper or a periodical, as provided in Article 45 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 amendments, are unconstitutional.
Anybody who publishes a daily newspaper or a periodical without registration or with registration suspended is subject to a fine penalty or the restriction of liberty.
This judgement indicates that the Polish legislator should consider a separate regulation for a printed press, and other rules for periodicals published, in particular, in the Internet. The Court pointed out not only the issue of criminal sanctions for the publication of press without registration, but also the issue of the obligation to register the press, which is still available in the APL.
The Polish Patent Office refused to grant the right of protection for the word trade mark flex fuga Z-297616 applied for by MAPEI POLSKA Sp. z o.o. for goods in Class 1 such as adhesives based on plastics and resins, silicone mortars, for goods in Class 6 such as decorative moldings, profiles, metal profiles, and for goods in Class 19 such as decorative moldings, profiles, profiles not made of metal, masonry mortars, dry plaster, mortars for grouting and welding.
The PPO decided that this trade mark is devoid of sufficient distinctive character and it lacks any additional elements, such as verbal or graphic, which would allow potential purchasers to identify the goods with the source of the origin of goods. The PPO noted that a fuga is a weld/joint between adjacent wall elements and flex means flexible in English.
MAPEI filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in Warsaw in its judgment of 26 August 2009 case file VI SA/WA 1017/09. MAPEI decided to file a cassation complaint. The Supreme Administrative Court in its judgment of 13 January 2011 case file II GSK 19/10 overturned the judgment of the VAC and held that the VAC relied on the erroneous assumption that the buyers (users) of goods bearing the trademark at issue are those who know English or use the Internet every day, which was not supported by any evidence. Besides, the trade mark flex fuga was applied for not only various types of mortars but also for various types of decorative moldings, profiles, sections of metal and non-metallic, and in relation to those goods it is difficult, to talk about “cut or bent” joint or weld.
The case went back to the Voivodeship Administrative Court. The VAC in its judgment of 9 May 2011 case file VI SA/Wa 562/11 held that the fact that the Polish Patent Office has granted the rights of protection for a number of trade marks containing the word “flex” or the word “flex” in combination with other words, should prompt the PPO to a broader examination of the merits of the MAPEI’s trade mark application. Thus, the PPO’s view that even if MAPEI relied on other decisions issued by the Polish Patent Office, it could not affect the assessment of the submitted application and its final examination, is not justified. The VAC noted that the PPO could change its position on the regularity of the grant of rights of protection, in which one element was the word “flex”, but it should justify such change in detail. The case law of the PPO may therefore be subject to change, if the authority demonstrates that there are reasonable grounds. However, any unfounded inconstancy of the opinion of the public body constitutes an infringement of the administrative procedure, because it may result in undermining citizens’ trust in state bodies and adversely affect the legal culture of citizens, and thereby cause a breach of the constitutional rule that all persons shall be equal before the law and all persons shall have the right to equal treatment by public authorities.
In 2007, Marek Witoszek wrote SEO software that allowed him to change the visibility ranking of a website of the Polish president Lech Kaczyński in search engines, when one of the Polish offensive words was typed in. He was prosecuted and charged based on the provisions of the Article 135 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.
Article 135. § 1. Whoever commits an active assault on the President of the Republic of Poland
shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.
§ 2. Whoever insults the President of the Republic of Poland in public
shall be subject to the penalty of the deprivation of liberty for up to 3 years.
The trial has been suspended for two years, because the judgment of the Constitutional Tribunal was expected to answer the question, whether one can be punished for insulting the president as an institution, not as a person. The Constitutional Tribunal in its judgment of 6 July 2011 case file P 12/09 held that Article 135 § 2 of the CRC is consistent with Article 54(1) of the Polish Constitution in connection with Article 31(3) of the Constitution and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, as amended. Mr Witoszek pleaded guilty and has requested a voluntary submission to punishment.
The District Court in Bielsko-Biała in its judgment of 25 October 2011 case file III K 76/08 sentenced Mr Witoszek for three months of imprisonment, and conditionally suspended the execution of a penalty for three years.
Mr Roman Oraczewski Oficyna Wydawnicza PRESS-MEDIA requested the Polish Patent Office to invalidate the right of protection for the trade mark “Sto Panoramicznych” R-102530 owned by TECHNOPOL Agencja Wydawnicza Spółka z o. o. and registered for goods in Class 16 such as magazines. The PPO invalidated this trade mark and ruled that this designation is descriptive and informative, because it is carrying explicit message on the number and type of crosswords included in each copy of the magazine. TECHNOPOL filed a complaint against this decision, but it was dismissed by the Voivodeship Administrative Court in its judgment of 16 February 2010 case file VI SA/Wa 1862/09. TECHNOPOL decided to file a cassation complaint. The Comapny argued inter alia that its trade mark has acquired secondary meaning because TECHNOPOL also used similar signs, for instance “100 panoramicznych” R-102531, which is a modification of the trade mark “Sto Panoramicznych”.
The Supreme Administrative Court in its judgment of 25 May 2011 case file II GSK 615/10 dismissed the complaint and ruled that the use of a sign in order to prove its secondary meaning, can not be documented by the use of other similar designation that is also a separate, registered trade mark.
In 2001, the Polish magazine “Polityka” published the article entitled “Po pierwsze Sandauer”. The author quoted a surgeon, who operated Adam Sandauer, the president of Primum Non Nocere association, in which he had said that instead of more surgery Mr Sandaur needed a psychiatrist. The author quoted other doctors, who spoke about Sandauer being in conflict with the medical community and suggested that he is in bad mental condition. He quoted passages of Sandauer’s private mail to confirm this statement. Mr Sandauer sued and the case went through all instances. The Supreme Court in its judgment of 17 listopada 2010 case file I CSK 664/09 held that publication of private correspondence without the permission of the author, and especially when it concerns the sphere of his or her private life, such as health, is unlawful.
AFLOFARM Fabryka Leków sp. z o.o. from Ksawerów sued two Polish companies for trade mark infringement and unfair competition delict/tort with regard to selling similar pharmaceutical products. This case went through all instances.
The Supreme Court in its judgement of 22 January 2010 case file V CSK 192/09 published in the electronic database LEX, under the no 564857, dismissed the complaint filed by Hasco Lek S.A. and Hasco Lek Dystrybucja. The Court held that the specificity of the market’s segment in which the magnesium preparations are sold, and which boils down to the fact that the same or very similar products gains the advantage of customers, through its specific name and advertising of such product and its packaging, requires greater care when introducing a new product of a very similar name and packaging, because it cannot mislead consumers, and it cannot take away consumers from another producer.
The Voivodeship Administrative Court in Warsaw in its judgment of 14 December 2009 case file VI SA/Wa 1764/09 held that the examination of all of the evidence should include all evidence taken in the proceedings, as well as taking into account all the circumstances surrounding an individual evidence and relevant to assess their strength and reliability. The PPO while considering the evidence, cannot skip any of the proof, it may, however, in accordance with the principle of the free assessment of evidences included in Article 80 of the APC, refuse the reliability of an evidence, but then it is obliged to justify all the reasons of such decision.
The public administration body shall assess whether a given circumstance has been proven on the basis of the entirety of the evidential material.
The Voivodeship Administrative Court in its judgment of 21 May 2010 case file VI SA/Wa 173/10 held that the statutory condition for the lapse of the right of protection is intended to eliminate the rights of protection granted to those signs that are not actually used in trade. The grant of the protection for a trademark is associated with the statutory obligation of genuine use of the mark for goods and services for which the trade mark is registered. It cannot be used symbolically, only to maintain the rights of registration. This case concerned the proceedings on lapse of the right of protection for “transpak gotuj ze smakiem” R-129729 trade Mark owned by Grajewski Zbigniew, Przedsiębiorstwo Produkcyjno-Usługowo-Handlowe TRANSPAK from Puszczykowo.
The Voivodeship Administrative Court in Szczecin in its judgment of 16 December 2009 case file II SAB/Sz 148/09 held that the general principle set in article 61 of the Polish Constitution, is the access to information on the activities of public authorities. Any exceptions to this rule should be formulated explicitly, and all doubts should be resolved in favor of the access.
1. A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury.
2. The right to obtain information shall ensure access to documents and entry to sittings of collective organs of public authority formed by universal elections, with the opportunity to make sound and visual recordings.
3. Limitations upon the rights referred to in paras. 1 and 2 above, may be imposed by statute solely to protect freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State.
4. The procedure for the provision of information, referred to in paras. 1 and 2 above shall be specified by statute, and regarding the Sejm and the Senate by their rules of procedure.
Judgments of the Polish courts are information on public matters according to the provisions of Article 1(1) of the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.
Each information on public matters constitutes public information in the understanding of the Act and is subject to being made available on the basis of principles and under the provisions defined in this Act.
The Court held that according to article 6(1) point 4 letter (a) of the API, a judgment is an official document that should be made available according to the procedures and principles set in the API.
The following information is subject to being made available, in particular on:
4) public data, including:
a)contents and form of official documents, in particular:
– contents of administrative acts and other resolutions,
– documentation on the control and its effects as well as presentations, opinions, conclusions and statements of the entities having conducted the control,
The Court also noted that anyone is allowed to request the access to public information in electronic form or in the traditional way, on paper.
On 15 January 2008, Tomasz W. filed with the General Inspector for Personal Data Protection (GIODO) a complaint concerning an unauthorized processing of personal data carried out by the Polish company Nasza Klasa Sp. z o.o. from Wroclaw, the owner of nasza-klasa.pl website. He informed the GIODO, that this very popular Polish website on classmates, hosts a photo featuring his image together with a list of names of other photographed people attached to it. Tomasz W. has repeatedly appealed to the website administrators with the request to remove his name from the list. However, he received no response from Nasza Klasa company.
As a result of the investigation, the GIODO found that on 31 December 2007, a registered user of nasza-klasa.pl posted classmates’ photo featuring students of a primary school. On the same day, another registered user, placed the names of people who were portrayed at the photograph – including the name and surname of Tomasz W. On 2, 9 and 14 January 2008, Tomasz W. requested Nasza Klasa Sp. z o.o. the removal of his personal data.
In a decision of 27 May 2008, case file DOLiS/DEC-314/08/13239, the GIODO, relying on the provisions of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), published in Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments, ruled that information on the applicant’s full name, school and class to which he attended, together with his image, are personal data and the data collector is Nasza Klasa Sp. z o.o.
However, the GIODO also ruled that it should be borne in mind that according to the provision of the Polish Act of 18 July 2002 on Providing Services by Electronic Means – PSEM – (in Polish: ustwa o świadczeniu usług droga elektroniczną), published in Journal of Laws (Dziennik Ustaw) No. 144, item. 1204 with subsequent amendments, Nasza Klasa sp. z o.o. provides electronic services for registered users of the portal website, consisting of the storage of data of these users in the computer system. This activity is the condition to legalize the processing of personal data in accordance with article 23(1) pt. 5 of the PPD. In addition, the GIODO found that in this case the applicant’s rights have not been violated, because the access to its data was limited to a group of people registered on nasza-klasa.pl website.
Tomasz W. asked the GIODO for the retrial. He pointed out that the reasons for the decision have many contradictions, inconsistencies and is ambiguous. He accused the GIODO of laconic and cursory treatment of his case. He again emphasized that his personal data have been published on the nasza-klasa.pl website without his knowledge or consent, in violation of his civil rights and liberties.
After the rehearing of the case, the GIODO annulled the contested decision, and discontinued the proceedings. GIODO claimed that the re-examination of the case leads to the conclusion that the disputed information about Tomasy W. did not fall within the definition of personal data. The name and surname have been given under his old image from many years ago. Hence, the combination of photos from the past, with a name and surname of a person and a primary school, which such person attended did not allow for the identification of a person without excessive costs and time. The findings that the disputed information is not personal data within the meaning of the PPD caused the proceedings in the matter to be groundless and on the basis of article 105 § 1 of the APC, it had to be discontinued.
Tomasz W. lodged a complaint with the Viovodeship Administrative Court in Warsaw. The complainant asked for annulment of the decision of first and second instance. Tomasz W. claimed the violation of the substantive law, i.e. article 6(1) of the PPD, through its improper interpretation, of article 32(1) pt 7 and 8 of that Act, by recognizing that Tomasz W. is not entitled to request cessation of the processing of his data and the right to object, and a breach of article 7 of the APC by not explaining all the relvant facts. Tomasz W. disagreed with the statement of the GIODO that questioned information about his person is not personal data within the meaning of the PPD. He stated that any information about an identified or identifiable individual is personal data. Furthermore, he argued that the claim of the GIODO that the data are available only for specific people – registered users of the portal is not acceptable, because nasza-klasa.pl has no mechanisms for verification of users identity, which makes the questioned data easily accessible for everyone. Moreover, Tomasz W. also argued that a registered user who does not know him would have some difficulty in identifying his person but such obstacles would not happen to a person who knows about Tomasy W., and is looking for additional information.
The Voivodeship Administrative Court in its judgment of 3 March 2009 case file II SA/Wa 1495/08 ruled that the GIODO erred in its decisions, because information about the name and surname of Tomasz W., combined with information about the name and address of the primary school and the determination of the class to which he attended in 1978/79, even if it was thirty years ago, are personal data. According to the Court provisions of article 1 of the PPD introduced the principle of autonomy of human information, meaning the protection of information about human being. This provision is a kind of emanation of the general right guaranteed by the Polish Constitution in article 47, according to which “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life”. This means that the protection of personal data is related to the protection of privacy rights. This follows from the wording of article 6 of the PPD, indicating that the personal data concern identified or identifiable natural or legal person and that the identifiable is a person is one whose identity can be determined. From wording of that provisions the VAC concluded that personal data are data that identify a person’s identity. The VAC also relied on the content of recital 12 of the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which emphasized the protection of all data relating to a person, and therefore also information about someones past.
(12) Whereas the protection principles must apply to all processing of personal data by any person whose activities are governed by Community law; whereas there should be excluded the processing of data carried out by a natural person in the exercise of activities which are exclusively personal or domestic, such as correspondence and the holding of records of addresses
However, in recital 26 of the abovementioned Directive states that data protection rules must apply to any information concerning an identified or identifiable person. In order to determine whether a person is identifiable, all the means which can be used by the controller or any other person to identify a person, should be taken into the account. The rules of data protection do not apply to data rendered anonymously in such a way that a subject of the data can not be identified. The identification of a given person concerns also past information about a specific human being, by which information one can learn about such person’s identity. Accordingly, the VAC held that European law means the protection of personal data as the protection of all the facts concerning the past of a particular person, which corresponds with the content of article 6(2) of the PDP. So this means that such data would also be protected. Referring to the foregoing facts of Tomasz W. case, the VAC ruled that that nasza-klasa.pl website published his image and name. In the opinion of the court these are the personal data which are protected by the PPD, because on their basis one is able to identify given person.
Nasza Klasa sp. z o.o. filed a cassation complaint with the Supreme Administrative Court (SAC) challenging in entirety the judgment of the VAC. The Supreme Administrative Court in a judgment of 18 November 2009, case file I OSK 667/09, rejected the complaint. The SAC held that the primary issue arising in this case was whether a classmates’ picture that was taken thirty years ago, at which Tomasz W. is potrayed, in the circumstances of the case, can be analyzed to determine his identity without necessarily involving excessive resources or time, and therefore, whether the data disclosed in the photo in question, constitutes personal data within the meaning of article 6 of the PPD, and whether it should be protected.
The concept of “personal data” on the Polish law includes any information concerning an individual if it is possible to define its identity and its identification. Personal data is a set of messages about a particular person such integrated that it allows for its individualization. It includes at least information necessary for identification (name, surname, place of residence), but this is not restricted, because it also include further information, strengthening the degree of identification. Such information will also include pictures of the individual, even if they were taken in the past, allowing to identify a person. In a situation where such a photograph is presented with a name and surname of the person portrayed, in a place accessible to an unlimited number of entities, it must be considered that it constitutes personal data subject to protection under the PPD. Mainly, the objective evaluation criteria decides for the qualification of given information as personal data, but it also should comprise of all information, including extralinguistic (context), to which third party may have or has an access. A different approach to the presented issues would maginalize the importance of the laws and it would not relate to its designated function.
Thus it should be considered that the image of Tomasz W. portrayed at the photograph that was taken 30 years ago, affixed with the class, his name and surname, and then published at nasz-klasa.pl website constitutes personal data within the meaning of article 6(2) of the PPD, and the cassation complaint was not justified. The SAC also noted that the consent for the processing of personal data cannot be in any way implied.
The SAC also stressed the fact the Internet as a source of information is increasing on a unknown scale and importance. It provides an access to specific information to a vast number of persons and allows for any of its processing within the meaning of the PPD. At the same time there are not yet developed appropriate mechanisms for the protection of individual rights when those rights have been violated as a result of the disclosure of information on the Internet. Then, it is a great role of law enforcement bodies, including the Inspector General for Personal Data Protection in creating practice to comply with applicable laws also on the Internet. It is an unacceptablr situation in which the entity seeks to remove its image from a particular website, and the administration fails to take action to ensure the protection of civil rights. The image is one of the very personal property rights and lack of consent to its publication, if it is not a public person, is a sufficient reason to believe that regulations of the PPD apply, if the conditions set in the article 6(2) of the PPD have been met. There is a legal sequel to this story. See “Personal data protection, case II SA/Wa 1212/10“.
I. The law
The main sources of binding laws in the Republic of Poland are the Constitution of 2 April 1997, acts passed by the Parliament, ratified international treaties and regulations issued, for example, by the Prime Minister or the Council of Ministers – Polish government. Regulations are issued for the purpose of implementation of acts. The main legal acts on personal data protection in the Republic of Poland are the following.
I.A. Substantive law
- The Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of October 29, 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of July 6, 2002, No. 101, item 926, with subsequent amendments.
- The Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.
I.B. Procedural law
- Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No. 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No. 98, item 1071 with subsequent amendments.
- Act on proceedings before administrative courts – PBAC – (in Polish:Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No. 153, item 1270, with subsequent amendments.
- Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, Journal of Laws (Dziennik Ustaw) No. 43, item 296, with subsequent amendments.
I.C. Case law
See “Polish case law on personal data protection“.
I.D. EU law
Since 1 May 2004, which was the accession day to the EU, the Republic of Poland has been bound by all aquis communitaire, including judgments of the Court of Justice of the European Union.
I.E. International law
The Republic of Poland is a party of many International treaties and agreements concerning the protection of personal data.
II. National bodies and procedures
The Inspector General for Personal Data Protection decides cases within its competence under provisions of the Code of Administrative Proceedings, unless provided for otherwise. A party dissatisfied with a decision issued by the GIODO may request for the reconsidering of the case. The decision by the GIODO on the application to reconsider the case may be appealed against with the Voivodeship Administrative Court. The judgment of the VAC may be a subject to a cassation complaint which is decided by the Supreme Administrative Court.
On 6 June 2004, the editor in chief of one of the Polish magazines requested the Minister of Internal Affairs and Administration for access and disclosure of the list of entrepreneurs who have been authorized to carry out business activity in the detectives and investigation services. The spokesman of the Minister replied that the registry of companies to whom such permits and licenses have been granted, as a whole, constitutes a database within the meaning of Article 2(1) point 1 of the Polish of 27 July 2001 on Protection of Databases – APD – (in Polish: Ustawa o ochronie baz danych), published in Journal of Laws (Dziennik Ustaw) No. 128, item 1402 with subsequent amendments. The whole structure of the registry is subject to legal protection and the its individual availability must be understood as the possibility to receive information about a specific item of the database. There are no procedural obstacles that the interested parties may receive information or data about a particular entrepreneur to whom the permit has been issued. So, as a general rule, the access to information contained in the registry is open, it does not mean, however, that the entire database should be disclosed – as a legal structure. The magazine filed a complaint on failure to act. The case went through all instances.
The Supreme Administrative Court in its judgment of 14 March 2006 case file I OSK 190/06 dismissed it the cassation complaint filed by the editorial team of the magazine.
In June 2005, Societe Des Produits Nestle S.A asked the Polish Patent Office to make a decision on the lapse of the right of protection for “3in 1” R-90234 trade mark owned by “MOKATE” sp. z o.o. from Zory. The request was based on article 28(1) of the old Polish Trade Mark Act – TMA – (in Polish: ustawa o znakach towarowych) of 1985, published in Dziennik Ustaw (Journal of Laws) of 1985 No 5, pos. 15, with later amendments.
The right deriving from registration of a trade mark shall expire if the person entitled has not used the mark within a period of three consecutive years in the Republic of Poland.
The request was also based on article 169(1) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo wlasnosci przemyslowej) of 30 June 2000, published in Dziennik Ustaw (Journal of Laws) of 2001 No 49, pos. 508, consolidated text on 13 June 2003, Dziennik Ustaw No 119, pos. 1117, with later amendments.
1. The right of protection for a trade mark shall also lapse:
(i) on failure to put to genuine use of the registered trade mark for the goods covered by the registration for a period of five successive years after a decision on the grant of a right of protection has been taken, unless serious reasons of non-use thereof exist,
2. In the cases referred to in paragraph (1), the Patent Office shall make a decision on the lapse of the right of protection for the trade mark at the request of any party having a legitimate interest therein.
The request was based on non-use of “3 in 1” trade mark. Mokate filed a motion asking the PPO to reject Nestle’s request. The motion was based on the lack of legitimate interest on Nestle’s side. The PPO agreed with Mokate’s argument. Nestle filed a complaint to the Voivodeship Administrative Court in Warsaw. The VAC in its judgment of 3 December 2007, act signture VI SA/Wa 1036/07 rejected Nestle’s complaint. The company filed a cassation complaint to the Supreme Administrative Court. The SAC in its judgment of 12 March 2009, act signature II GSK 774/08 held that conditions of legitimate interest are based on two levels — procedural — because it is justifying the initiation of administrative proceedings in a particular matter and “substantive”, as it results from the provisions of the law that apply to certain rights and obligations of a person (legal or natural). Although the substantive law is the source for the legitimate interest but the legal interest as a condition that justfies the initiation of the procedure for declaration on the lapse of the right of protection for the trademark is primarily a category of administrative procedure – one of the principles of this proceedings as to its proper initiation. The cassation complaint was rejected.
The SAC ruled also that it was uncontested that the First Council Directive left Member States free to establish procedural rules. The requirement of legitimate interest included in article 169(2) the IPL only entitles a party to initiate the administrative proceedings on the lapse of the right of protection for a trade mark, but does not guarantee such applicant that the PPO will issue a decision that is favourable to him, because the PPO shall issue a decision on the lapse of the trade mark rights if it finds the fulfilment of the substantial prerequisites to the lapse, and not the infringement of the legitimate interest. Since then the provision of article 169(2) are only applicable only to a right to file a request for a decision on the lapse of the right of protection for a trade mark for the reasons referred to in section 1 of article 169 being the substantial prerequisites, the requirement to demonstrate a legitimate interest can not be understood as an additional substantial prerequisite for deciding on the lapse of trade mark rights. Such assessment is not changed by the fact that, as the court already stated, the legitimate interest is the normative category of the substantive law.
In the Polish administrative law the legitimate interests requirement creates the concept of a proceedings party. This issue has been dealt similarly in the law of industrial property, including a prerequisite to request the Polish Patent Office to take a decision declaring the right of protection for the trade mark.
The legitimate interest prerequisite has two grounds – procedural because it justifies the initiation of the administrative proceedings in a particular case and substantive, because it results from the provisions of substantive law that apply to certain rights and obligations of an entity. Although a source of the legitimate interests lays in the substantive law, the legal interest as a condition requesting the PPO to issue a decision declaring on the lapse of the right of protection for the trade mark lapsed is primarily a category of administrative procedure – one of the principles of this proceeding as to its proper initiation.
The issues on legal interest are both regulated in the procedural law (including the administrative proceedings that apply to trade mark cases) and these are also the normative category of the substantive law. The source of the legal interest is the substantive law. If the source is the substantive law then the Directive should apply. However the SAC consistently refuses to refer this matter to the Court of Justice.
See also “Trade mark law, case II GSK 309/07“.