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Archive for: Polish Constitution

Trade mark law, case II GSK 385/08

November 14th, 2008, Tomasz Rychlicki

On 26 June 1996 the Polish company “Sniezka” Chlodnia from Czestochowa applied for figurative trade mark in class 30 for goods such as ice creams. The graphic represented a black boy’s head. On 10 September 2001, the Polish Patent Office granted the right of protection R-132332.

R-132332

On 31 July 1998, the Lodmor company from Gdansk applied for word-figurative trade mark “calypso lody smietankowe waniliowe LODMOR” Z-190131 in class 30 for goods such as ice creams, ice cream powder, ice cream binders. The PPO rejected Lodmor’s application justyfing its decision on priority of the “Sniezka” company’s trade mark.

Z-190131

Lodmor filed a request for trade mark invalidation. The company from Gdansk claimed that “Sniezka” illegally appropriated a sign of a black boy’s head, which was put on Calypso ice creams in the ’70s and ’80s by companies that were part of the Union of the Freezing Industry (Lodmor is a legal successor of one of them). The PPO has invalidated “Sniezka” trade mark in 2006. The Office ruled that this sign was registered in contrary to principles of merchant’s honesty because the mark was already used for a long time by other entrepreneurs.

“Sniezka” company appealed. The Voivodeship Administrative Court (VAC) in Warsaw in its judgment of 17 October 2007 case file VI SA/Wa 1005/07 held that Lodmor had no legal interest in filing a request for trade mark invalidation. The court annulled PPO’s decision. VAC held that the concept of legal interest in invalidation proceedings can not be derived from the fact that one company applies for a trade mark protection and there is an obstacle in the form of earlier registration. Such conclusion would lead to negation of principles that are the basis for granting rights for trade mark protection. In this case the interest involved only economic issues.

Lodmor filed a cassation complaint. The Supreme Administrative Court in its judgment of 23 October 2008, case file II GSK 385/08, agreed with Lodmor’s arguments that VAC only referred to the trade mark application and it did not consider Lodmor’s legal interest. The SAC already issued decisions and opinions as regards the breach of principles of mercantile honesty and the bottom line of each ruling was that, in specific circumstances, a legitimate interest of a competitor may be found, as it was in Lodmor’s case. The Court held that every entrepreneur has the right to designate its products and services, with a trade mark, if it does not remain in conflict as to the form, duration and territorial aspect, with the absolute right that was previously obtained by another entity. An entrepreneur has a legal interest in the request for invalidation of the right of protection for a trade mark on the basis of circumstances provided in the request and conditions included in such a motion if the right of protection was granted in violation of the statutory requirements. The relevance and application of these conditions shall be assessed in proper proceedings. Therfore the SAC returned the case to VAC for reconsideration.

Trade mark law, case II GSK 332/08

October 14th, 2008, Tomasz Rychlicki

On December 1999, Polish company Top Choice Agata Murawska has applied for trade mark registration for word mark WINNER and word-figurative sign W WINNER in Class 21 for goods such as combs, hair brushes and other products and in Class 29 for rollers. In 2003, The Polish Patent Office granted the right for protection respectively R-148543 and R-148540.

R-148540

Inter Vion SA from Warszawa decided to invalidate aforementioned registrations claiming that those trade marks are the company name (the firm) of Tong-Fong Brush Factory Co. Ltd., from Taiwan which is one of the biggest producers of brushes, combs and mirrors (60 milions of pieces produced in 2000). The WINNER sign, although not registered, was used by Taiwanese company since 1997 on the Polish market. The Company from Taiwan presented an offer involving a series WINNER products to several of Polish companies, including Inter Vion and Top Choice. Since 1998 Top Choise has imported the above-mentioned accessories bearing WINNER trade mark, first by intermediaries, and since 2000 directly from the Taiwanese company. InterVion has signed its first importation contract for WINNER products in 1999. The company has presented first images of these goods in its directory of 1999/2000. During invalidation proceedings before the Polish Patent Office InterVion has alleged that Top Choice, by registering the disputed marks, tried to gain a monopoly on the importation of products.

The PPO invalidated WINNER and W WINNER trade marks in its decision of 4 October 2006, act signatures Sp. 119/05 and Sp. 46/06. The Voivodeship Administrative Court in Warsaw has dismissed Top Choice’s appeal complaints in its judgments of 27 August 2007, case files VI SA/Wa 114/07 and VI SA/Wa 115/07.

Top Choice filed a cassation complaint before the Supreme Administrative Court claiming that VAC erred in its findings and violated the administrative procedure rules. The SAC in its judgment of case file II GSK 332/08 dismissed the cassation and based its arguments on procedural errors included in Top Choice’s complaint which in court’s opinion lacked proper claims’ construction. However, SAC also held that company who registered other company’s name as a trade mark acted in bad faith which was a sufficient circumstance to declare invalidation of such trade mark by the PPO.

Access to public information, case II GSK 459/07

August 7th, 2008, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 20 March 2008 case file II GSK 459/07 held at the begining of judgment’s justification that administrative decisions are public information within the meaning of article 1(1) of the API and may be disclosed, in accordance with 6(1) pt 4 letter a, first tiret of the API. According to the SAC, after completion of the application proceedings, including any inter partes proceedings, article 251 of the IPL will no longer be applicable, and access to case files will be based on the general provisions of the API. Pursuant to article2(2) of the API, the Authority cannot require to prove legitemate or factual interest from the person entitled to a right to public information.

The Court also held that not all documents from the case file should be considered public information. Such nature have only official documents. Pursuant to article 6(2) of the API, an official document within the meaning of the Act is the content of the declaration of will or knowledge, recorded and signed, in any form by a public official under the provisions of the Penal Code, within its competence, that is addressed to another entity or put to the file.

Personal rights, case I ACa 385/2006

July 31st, 2008, Tomasz Rychlicki

Update on Februrary 27, 2010.
I reported on a final judgment in Justyna Steczkowska’s case in my post entitled “Personal rights, case I ACa 1176/09“.

My post that was written in Polish language is too long and probably boring for most of you. It concerns Justyna Steczkowska’s naked pictures taken during her holiday at Turkish Rivera and being published by “Super Express”, which is one of many Polish tabliods. I also wrote about some comments that were posted by Polish lawyers regarding the right of privacy issue and I wanted to write a comparative note about American and Polish legal systems but I am way too busy for such undertaking. I can only tell you that Maciej Ślusarek, an attorney representing Justyna Steczkowska, will have easier case in Poland as opposed to the US legal reality. Mr. Ślusarek previously won a case against “Super Express” publisher and editor-in-chief. It was a very important judgment of the Appellate Court in Warsaw of 29 September 2006, case file I ACa 385/2006. Mr. Ślusarek represented another Polish singer Edyta Górniak. The Court held that there is a need to distinguish the persons carrying out the public functions, if a person due to the character of those functions might be subjected to public control and the openness of their life is justified by the important society interest, from the commonly known persons, who are not subjected to such intense public control. The distinction included in court’s ruling is of course of great importance for protection limitations established for such persons.

The protection of personal image/publicity rights is provided in the Polish Civil Code in article 23. This provision outlines the personal image as one of the personal property/interests – an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image afforded by provisions of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, 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.

Article 81.
1. The dissemination of an image shall require the permission of the person presented in that image. Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing.
2. The permission shall not be required for the dissemination of the image:
1) of a commonly known person, if such image has been made in connection with his/her performance of public functions and, in particular, political, social or professional functions,
2) of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event.
(…)
Article 83.
The provisions of Article 78, paragraph 1 shall apply respectively to claims brought due to the dissemination of the image of the person presented in it and the dissemination of correspondence without the required permission of the person to whom it was addressed; such claims may not be asserted after the lapse of twenty years from the death of that person.

Additional protection is also provided in the Act of 26 January 1984 on Press Law, the Criminal Code and the Act of 29 August 1997 on Protection of Personal Data. The protection of privacy and publicity may also derive from the Constitution of the Republic of Poland of 2 April 1997.

Article 47
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.
(…)
Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

And, of course, from the European Convention on Human Rights of 4 November 1950.

Trade mark law, VI SA/Wa 1962/07

July 6th, 2008, Tomasz Rychlicki

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.

IR-653449

In support of its legal interest Biosystem S.A. explained that it is one of more than 30 domestic companies, 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 spreaded and used among various companies and as the result of negligence of the owner and licensee these signs cannot fullfill 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 has 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 by article 20 of the Constitution and Article. 6 of the Act of 2 July 2004 on freedom of economic activity.

Biosystem appealed. The Voivodeship Administrative Court in its judgments of 15 April 2010 case file VI SA/Wa 1959 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 begining 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 shall not be enforceable.

The VAC decided on other PPO’s decisions on 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.

Criminal law, case P 10/06

December 13th, 2006, Tomasz Rychlicki

The Constitutional Tribunal in its judgment of 30 October 2006 case file P 10/06, examined the preliminary question referred by a Regional Court in Gdańsk concerning the provision of Articles 212 § 1 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or of the Polish Red Cross, or of another social purpose designated by the injured person a supplementary payment (nawiązka).
§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.

The Regional Court and different NGOs claimed that the sufficient protection against defamation may be realized within the relevant provisions of the civil proceedings, in particular, the system of protection of personal rights/interests, provided in the Civil Code. The Regional Court alleged that the penalization of the defamation limits the constitutional freedom of expression as set forth in Articles 14 and 54 of the Polish Constitution in a way which is not necessary in the democratic State and, therefore, it constitutes a violation of the principle of proportionality, guaranteed in the Article 31(3) of the Constitution.

Article 14
The Republic of Poland shall ensure freedom of the press and other means of social communication.

Article 31
1. Freedom of the person shall receive legal protection.
2. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.
3. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

The Constitutional Tribunal did not uphold the aforementioned argumentation and ruled that the challenged provisions of the Criminal Code are in conformity with the constitutional principle of proportionality. The criminal-legal protection of private life and good reputation is necessary in democracy and may not be sufficiently substituted by the civil-legal provisions. Judges Ewa Łętowska, Marek Safjan i Mirosław Wyrzykowski presented dissenting opinions. Those judges focused mainly on the solution adopted in Article 213 § 2 of the CRC.

Article 213. § 1. The offence specified in Article 212 § 1 is not committed, if the allegation not made in public is true.
§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed to have not committed the offence specified in Article 212 § 1 or 2; if the allegation regards private or family life the evidence of truth shall only be carried out when it serves to prevent a danger to someone’s life or to prevent demoralisation of a minor.

The Tribunal ruled in favour of the private life and good reputation. Such conclusion is justified in the axiology of Article 30 of the Polish Constitution.

Article 30
The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.

The latter argument, namely the strict link between individuals’ privacy and human dignity, leads to the conclusion that the protection of privacy is in the interest of not only a person whose privacy has been violated, but also in the interest of the entire society. Hence, the protection of privacy and good reputation constitutes the public interest that needs to be taken into consideration in construing the system of anti-defamation protection mechanisms. The Tribunal ruled that defamation is a violation of the human dignity. The obligation of public authorities is to respect and protect human dignity which includes the need to ensure protection against infringement also by private entities. The Constitutional Tribunal transposed the aforementioned argumentation into the field of comparison of the criminal liability, which is aimed at repression, and civil liability, which is aimed – in principle – at compensation.

In the Tribunal’s opinion, the constitutional requirements concerning the protection of privacy and good reputation impose on the legislator the duty to create mechanisms which would take into account not only the need to satisfy the victim of defamation (to compensate his or her harm), but also to the need to underline the social condemnation of such activities. The civil liability fulfils only first of these conditions. That is why there is a necessity – the necessity in a democratic State – to encompass the defamation with the scope of criminal law, since where a certain type of behavior is treated by the legislator as a criminal offence, it signifies that such a behavior constitutes a threat to public interest and not only to the rights and freedoms of victims.

These arguments led the Constitutional Tribunal to the conclusion that the challenged provision of the Criminal Code, penalizing the defamation of a person, does not violate the Constitution.

Polish patent attorneys, case K 30/01

December 11th, 2006, Tomasz Rychlicki

On 9 July 2001, the Polish Supreme Bar Council (in Polish: Naczelna Rada Adwokacka), requested the Constitutional Tribunal, to declare unconstitutional the provisions of article. 236(1) and (3) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No. 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with later amendments.

Article 236
1. Except as provided for in paragraph (2), in proceedings before the Patent Office in matters relating to the filing and processing of applications and maintenance of the protection of inventions, utility models, industrial designs, trademarks, geographical indications and topographies of integrated circuits, only a patent agent may act as a representative of a party to a proceeding.
2. Subject to paragraph (3), a natural person may also be represented by a joint right holder or parents, brothers, sisters, descendants of the party or persons in the relation-by-adoption with the party.
3. In the matters referred to in paragraph (1), any persons not having their domicile or seat in Poland may only act when represented by a patent agent.

The SBC argued Polish advocates are not allowed to act before the PPO based on provisions of article 236(1) and (3) of the IPL, which in consequence violates the principles of equal treatment of all citizens provided in article 32 of the Polish Constitution.

1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.
2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.

The Constitutional Tribunal in a judgment of 21 May 2002, case file K 30/01, published OTK-A 2002/3/32, held that the challenged provisions are constitutional. The request was unfounded because one cannot demand for equal treatment of all citizens, from the perspective of the right to perform given professional activity, based on the principle of equality of citizens before the law. According to settled case law of the Constitutional Tribunal, the principle of equality requires equal treatment of persons that have the same legal and factual situation, and – simultaneously – allows differentiation of the legal status of persons belonging to different groups, provided of course that the separation of these groups is made based on criteria consistent with the constitutional values. In the opinion of the Tribunal, the diversity of legal professions, on the one hand, and patent attorneys, on the other hand, does not violate any constitutional principles. The division of professionals and labour is quite obvious for a developed society. Professional groups at issue in this case include the highly specialized professionals, and their operation is strictly regulated by the law, both when it comes to specialist education and professional background, type of activity and responsibility for the improper performance of duties. The Tribunal ascertained that even within the strictly legal profession there is a clear differentiation, which – certainly – did not justify the claim of infringement of the constitutional principle of equality, for example, by forming different status of advocates and notaries, or advocates and solicitors.

Polish patent attorneys, case SK 43/04

September 15th, 2006, Tomasz Rychlicki

Tadeusz Rejman, Polish patent attorney was representing a client before the public prosecutor’s office in case of trade mark infrignegement. The public prosecutor’s office discontinued the investigations and decided that Tadeusz Rejman is not entitled to represent a person during a criminal proceedings. An advocate representing Tadeusz Rejman filed a complaint to the Constitutional Tribunal challenging the constitutionality of article 88 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with later amendments. According Rejman, the challenged provisions infringed on article 2 and article 65 of the Polish Consitution.

Article 2.
The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.
(…)
Article 65
1. Everyone shall have the freedom to choose and to pursue his occupation and to choose his place of work. Exceptions shall be specified by statute.

2. An obligation to work may be imposed only by statute.

3. The permanent employment of children under 16 years of age shall be prohibited. The types and nature of admissible employment shall be specified by statute.

4. A minimum level of remuneration for work, or the manner of setting its levels shall be specified by statute.

5. Public authorities shall pursue policies aiming at full, productive employment by implementing programmes to combat unemployment, including the organization of and support for occupational advice and training, as well as public works and economic intervention.

The unconstitutionality of article 88 of the CRPC was based on the fact that patent attorneys do not have the legitimacy to act in criminal proceedings as a representative of a party, which in consequence violates the rule of a democratic state and that the exclusion of patent attorneys from cases relating to industrial property protection in criminal proceedings, is restricting their right to act on behalf of their clients in cases where they have the knowledge and preparation on a much higher level than other practitioners. This exclusion is also a violation of their constitutional right to free practice.

The Constitutional Tribunal in a judgment of 27 July 2006, case file SK 43/04, published in Orzecznictwo Trybunału Konstytucyjnego Seria A, 2006, No. 7, item 89, ruled that representation of the sufferer in criminal investigations proceedings conducted by the prosecuting authority does not fall within the scope of the patent attorney profession. These steps can I be entrusted only to an advocate or a legal advisor where appropriate.

Trade mark law, case II GSK 49/05

June 29th, 2005, Tomasz Rychlicki

The Polish Patent Office in its decision of 10 April 2003 No Sp. 218/01 refused to invalidate the registration of AMBER R-98839 trade mark registered for goods in Class 3 such as bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices and owned by Evyap Sabun,Yag,Gliserin Sanayi Ve Ticaret A.S. from Istambul, Turkey. The request for invalidation was filed by IZIS Kosmetyczno-Lekarska Spółdzielnia Pracy from Warsaw and IZIS decided also to file a complaint against this decision. The Voivodeship Administrative Court in Warsaw in its judgment of 14 October 2004 case file 6 II SA 3571/03 annulled the questioned decision and ruled that it was made in a breach with procedural law. Evyap Sabun,Yag,Gliserin Sanayi Ve Ticaret A.S. filed a cassation complaint.

The Supreme Administrative Court in its judgment of 11 May 2005 case file II GSK 49/05 ruled that there is no doubt that it’s necessary to refer to the inadmissibility of registration of a trade mark as provided Article 8(1) of the TMA with regard to the content of the trade mark itself. Initially, in legal doctrine and then in case-law, started to develop trends to classify to this provision also with the actions/behavior of a person who applied to register the trade mark, that were characterized by the contradiction with the principles of social coexistence, later replaced with the legislation naming such as “complying with the principles of good manners”, fair trading and good faith , so these are subjective elements. There were not, however, views, or judgments, combining this rule with the conduct of the administrative proceedings, because such understanding is simply unacceptable. The SAC repealed the questioned judgment.

Trade mark law, case II GSK 92/05

January 11th, 2005, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 18 October 2004 case file II GSK 92/05 held that the capability of distinguishing the goods or services (so-called abstract ability to distinguish goods or services) must be distinguished from the sufficient distinctiveness. Only after finding that a given sign is capable to serve as a trademark, its distinctive ability in concreto is subject to examination. The trade mark cannot be identified with the product itself.

R-116211

The contradictions with the law or rules of social coexistence, that are the condition of inadmissibility to register a trade mark must not only connect directly to the sign itself, but also to the circumstances surrounding the registration of the mark if they contain elements contrary to law or the rules of social coexistence. In addition, the violation of other laws than those included in the TMA should be considered as the registration contrary to law. The registration of a 3D trade mark whose sole purpose is to monopolize the market of a given product and thus deprive the competitors of the freedom of establishment as regards the possibility of further production of the same product, is violation of the provisions of the law.