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Tax law, case III SA/Wa 1823/09

May 17th, 2010, Tomasz Rychlicki

The Director of Tax Control Office in Warsaw ruled that the amounts of cash referred to as a “license to exercise the media rights” that were received by Legia football club from the Polish Football Association (PZPN), should be subject to tax on goods and services. Legia argued that such an agreement is not a contract of sale of rights, but the license agreement. However, the Director has found that the PZPN was the sole owner of intangible (economic and non econimic) property rights to the Polish national championships. To be the sole owner of the rights to football matches, PZPN had to acquire these rights. Therefore, Legia had to transfer these rights in some way, and that included proper fee.

The Director referred to a series of court decisions and pointed out that the sports’ event, namely football games, do not constitute a copyrightable work under 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. Legia as a football club does not take action on the creative nature. In the opinion of the Director, it is not precluded that on the legal market may exist licensing agreements relating to intangible property, other than works that are defined in the ARNR.

Only article 43(1) pt 13 of the Act on Goods and Services Tax – GSTA – (in Polish: ustawa o podatku od towarów i usług) of 11 March 2004, Journal od Laws (Dziennik Ustaw) No. 54, item 535, includes a reference to the ARNR.

Art. 43. 1. The following shall be exempted from the tax:
13) licensing or authorization to use a license, as well as assignment of the proprietary right within the meaning of the copyright law – in relation to computer programmes – free of charge, for educational facilities, referred to in paragraph 9.

That provision indicates the grant of the license or authorization to use copyright licenses and the transfer of property rights under copyright law (the ARNR). The absence of such references in other regulations means that the transfer of copyright may affect the rights of the author, or a sole owner of any intangible property, which does not have the characteristics of the copyrightable work. A similar situation will occur in the case of a license. Wherever there is no reference to copyright law (ARNR) it will also mean the license agreement for the use of intangible property other than the copyrightable work.

The Tax Office ruled that Legia transfered “media rights” to the PZPN, so the Association could fully manage of them, and so enter into an agreement concerning the disposition of such rights. The rate of the tax shall be 22% for such service. The tax shall become chargeable upon the receipt of all or part of payment, though not later than upon the expiry of the due date specified in the contract or invoice – for the performance in the territory of the country of services referred to in article 27(4) pt 1 of the GSTA.

4. The provision of paragraph 3 shall apply to the following services:
1) sale of rights or granting of licenses or sublicenses, transfers and assignments of copyrights, patents, trademarks, letting joint trademarks or joint guarantee marks for use, or other related rights.

Legia did not agree with the decision of the Director of Tax Control Office and filed a complaint against. The Voivodeship Administrative Court in Warsaw in its judgment of 26 March 2010 case file III SA/Wa 1823/09 dismissed it.

Trade mark law, case II GSK 555/09

May 17th, 2010, Tomasz Rychlicki

This is the continuation of the story described in “Trade mark law, case VI SA/Wa 2376/08“. The Free Trade Union of Drivers of the Republic of Poland (FTUD) and its representative disagreed with the decisions of the Polish Patent Office and the Voivodeship Administrative Court, and filed a cassation complaint to the Supreme Administrative Court. The FTUD claimed that the drawing of an eagle included in its sign differs from the National emblem, because it has different colors and is on a different background. The Union also argued that the sign emphasizes its national identity, and not link with the state bodies. According to the Union, the PPO already registered many characters that consist of national symbols that were artistically altered. The refusal of registration of the questioned sign limits the competition argued the Union.

The Supreme Administrative Court in a judgment of 21 April 2010, case file II GSK 555/09, dismissed the cassation appeal. According to the SAC the provisions of the IPL and the Act on Coat of Arms, Colours and Anthem of the Republic of Poland should be read together. Neither the emblem or image of the Eagle established as the emblem and symbols of the Republic of Poland shall not be subject to protection rights. This applies also to similar signs – said Judge Małgorzata Korycińska. The judgement is final.

Polish patent attorneys – substitution and delivery of documents

May 16th, 2010, Tomasz Rychlicki

According to the provisions of Articles 240 and 241 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments, a representative shall be authorised to appoint a substitute (substitution).

Article 240
1. Except for the persons referred to in Article 236(2), a representative shall be authorised to appoint a substitute (substitution).
2. Authorisation by another joint right holder shall not be required for performing conservatory action.

Article 241
1. Where two or more persons are parties to a proceeding and no representative has been appointed, the persons concerned shall be required to indicate one address for service. Failing to indicate such address, the address of the person named first in the application or in another document, on the basis of which the proceeding is instituted, shall be deemed to be that address.

2. At a party’s request, the Patent Office shall also send letters addressed according to paragraph (1) to the addresses additionally indicated by that party. This provision shall also apply accordingly, where only one person who has appointed a representative is a party to the proceeding.

As the effect of establishing a substitute, the same relationship, which was established between a party and a patent attorney is also created between a party and a substitute, while maintaining the existing powers of attorney. This means that the party has two equivalent proxies since the establishment of an effective substitution. See for instance opinions presented by the Supreme Court Civil Chamber in a judgment of 13 February 2004, case file IV CK 269/02, the Supreme Court Civil Chamber in a decision of 7 November 2006, case file I CZ 78/06, or judgment of the Voivodeship Administraive Court in Poznańof dnia 20 February 2007, case file I SA/Po 1432/06.

On the basis of provisions of Article 40 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments, where a party has established a representative, all documents are delivered to the proxy and not a party.

Article 40.
§ 1. Documents shall be served on the party to proceedings, and if the party is acting by a representative – on that representative.
§ 2. If a party to proceedings has appointed an attorney then documents shall be served on the attorney.
§ 3. If a case has been commenced at the instigation of two or more parties the documents shall be served on all parties, unless the application indicates that one of them is authorised to receive service.

Due to the limitation established for granting the substitute power of attorney only to patent attorneys and provisions of article 237(1) of the IPL which provide that there can be only one proxy for one legal action, in case of existence of a substitute, all correspondence will be delivered to one person – the agent or a substitute.

Article 237
1. In the performance of one act a party may be represented by one natural person only.
2. A power of attorney shall be in writing and shall be included in the files on performance of first legal act.
3. Where the power of attorney covers two or more cases, it shall be included in the files of that of the cases, in respect of which the first act is performed by the representative. When acting in other cases covered by the power of attorneys, the representative shall be required to furnish a certified copy of the power of attorney.
4. A patent agent shall be allowed to certify himself a copy of the power of attorney granted to him.
5. Failing to pay a due stamp duty for the power of attorney, the Patent Office shall invite the representative to make relevant payment and in case it should not be made, it shall additionally invite the party to confirm, within the fixed time limit, the acts performed by the representative. Failing to observe the fixed time limit, the provision of Article 223(4) shall apply accordingly.

The decision in this regard will be taken following an assessment of attorney documents and attorney substitution. However, in the case of granting substitution of confluence with the scope of powers of attorney and without indicating an address for delivery of documents, the Polish Patent Office will continue to deliver documents only to a substitute.

Personal interests, case II CSK 580/09

May 1st, 2010, Tomasz Rychlicki

The Supreme Court in a judgment of 6 May 2010 case file II CSK 580/09 ruled that if there is a high probability of irreversible impairment of the fetus, the mother can decide whether to remove the pregnancy. The Court has confirmed that the decision on the abortion is every mother’s personal right/interest, and in the case of an infringement of such right, a woman has the right to seek the redress for the harm and damages to compensate for both parents increased costs of raising a handicapped child.

Categories: abortion | case law | personal rights or interests | Polish Supreme Court.

Advertising of pharmaceuticals, case GIF-P-R-450/147-3/ZW/09/10

April 28th, 2010, Tomasz Rychlicki

The Main Pharmaceutical Inspector (MPI) questioned the legality of a few ads that were aired on different TV channels. See for instance the decision of the the Main Pharmaceutical Inspector of 4 March 2010, no. GIF-P-R-450/147-3/ZW/09/10, with regard to indication of a sponsor in “The producer of Guajazyl – cough syrup, invites to a forecast” (in Polish “Na prognozę pogody zaprasza producent Guajazylu – wykrztuśnego syropu na kaszel”), the decision of the the Main Pharmaceutical Inspector of 10 March 2010, no. GIF-P-R-450/141-4/ZW/09/10, with regard to indication of a sponsor in “The producer of Pectosol – herbal preparation on cough, invites to a program” (in Polish: “Na program zaprasza producent Pectosolu – ziołowego preparatu na kaszel”), the decision of the the Main Pharmaceutical Inspector of 6 January 2010, no GIF-P-R-450/126-3/ZW/09/10, with regard to indication of a sponsor in “The producer of DEXAPINI invites to a forecast. DEXAPINI – goodnight without a cough” (in Polish: “Na prognozę pogody zaprasza producent syropu DEXAPINI. DEXAPINI – dobranoc bez kaszlu”).

According to the provisions of Article 17(1) of the Polish Act of 29 December 1992 on Broadcasting – LOB – (in Polish: Ustawa o radiofonii i telewizji), published in Journal of Law (Dziennik Ustaw) of 1993, No 7 item 34, consolidated text of 19 Novemver 2004, Journal of Laws (Dziennik Ustaw) No 253 item 2531, with subsequent amendments, sponsored programmes or other broadcasts shall be identified as such by sponsor credits at their beginning or end. Such credits may specify only the sponsor’s name, business name, trademark or contain some other identification of the business operator or its business activities, the image of a single product or service. According to article 4 pt. 7 of the LOB, the “sponsorship” shall mean a direct or indirect financing or co-financing of the production or transmission of a programme or other broadcasts by an entity other than the broadcaster or producer of the programme, with a view to establishing, enhancing or promoting the renown of the name, business name, product or service, trademark. The MPI held that publishing of information relating to the product, not the manufacturer’s is basically beyond the scope of sponsorship. The MPI ruled that these sponsorship spots were illegal advertising of the medicinal products.

Polish patent attorneys – authentication of documents

April 25th, 2010, Tomasz Rychlicki

According to the provisions of Articles 76a § 2, 3 and 4 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments, a party may file copy of a document if it complies with the original one and its originality have been authenticated by a patent attorney acting as a representative. According to the recently amended Act on the authentication of documents, such documents should include: the signature of a patent attorney, the date and the venue for its preparation, and also on a request: the time of the transaction. If the document contains special features (annotations, corrections or damages) patent attorney will acknowledge it in the authentication. The authentication of originality that was included in the copy of the document has the nature of the official document. In special circumstances, the Patent Office may request a party to submit original documents.

Trade mark law, case II GSK 344/09

April 20th, 2010, Tomasz Rychlicki

This is the continuation of the history described in the post entitled “Trade mark law, case VI SA/Wa 1388/07“.

The Polish Patent Office (PPO) and the Voivodeship Administrative Court (VAC) ruled that EAU DE TOKYO trade mark is totally dissimilar to KENZO or to L’eau par Kenzo trade marks. The mere fact of the use of the word eau did not predict similarity of questioned signs, because the word as part of the expression of eau de toilette, in relation to cosmetics does not have any distinctive character. The PPO and the VAC did not agree with arguments that MGT Parfum Création wanted to use the reputation that was understood as the good name of KENZO.

According to the PPO and the VAC, the use of packaging that is confusingly similar to the packaging used by KENZO could only give rise to claims of delict of unfair competition which is decided in the civil proceedings. The very fact of any dishonest conduct of the holder of the disputed registration cannot be interpreted that the trade mark application has been made in bad faith. Even if the court agreed that events which took place in 2006, i.e. MGT actions based on producing EAU DE TOKYO packaging that looked alike L’eau par Kenzo perfumes, and advertising of its products with “the type of Kenzo perfume” slogan, could raise doubts about compliance of such actions with the rules of fair competition, but these were not sufficient facts to consider that in 2000, MGT had the intention to act dishonestly – in bad faith.

The Supreme Administrative Court (SAC) in a judgment of 26 January 2010,case file II GSK 344/09, ruled that the PPO has properly established and the VAC correctly agreed to facts, that at the time of application for the protection right for EAU DE TOKYO R-153843 trade mark, the bad faith could not be attributed to MGT Parfum Création.

Tax law, case III SA/Wa 396/10

April 18th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 8 April 2010, case file III SA/Wa 396/10, ruled that there is no legislative impediment to the existence of a mixed system for the storage of invoices, which consists of sending an invoice in paper and storage of its electronic copies with the option to print at the request of a legitimate authority. Such an interpretation was corroborated by teleological considerations, environmental and economic. According to the VAC the different findings would lead to a breach of the principle of proportionality, as set out in article 5(3) of the Treaty on European Union.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal C 83 of 30 March 2010. PDF files.

Trade mark law, case VI SA/Wa 1988/09

April 15th, 2010, Tomasz Rychlicki

Kraft Foods Polska Spółka Akcyjna from Warsaw, the owner of PRINCE POLO R-148617 trade mark gave a reasoned notice of opposition to a final decision of the Patent Office on the grant of a a right of protection to MARCO POLO R-174796 trade mark that was applied for by Zakłady Przemysłu Cukierniczego MIESZKO S.A. for goods in class 30.

Kraft Foods claimed that there is a risk of confusion between these trade marks, which is the result of the similarity of the compared signs and the identity of the goods. Kraft also submitted evidence to prove the reputation of PRINCE POLO trade mark. Mieszko argued that the signs are dissimilar because the graphic/figurative element of these marks is essential, and verbal elements are blurred or faint and even minor. Mieszko also found arguments of POLO PRINCE reputation very questionable, because even Kraft indicated that the goods for which its trade marks are registered marks are cheap and directed for the mass consumer.

The Polish Patent Office (PPO) In a decision of 23 April 2009, ruled that the same element POLO does not determine the similarity between both signs, because the differences occurring in the conceptual aspect rule out the risk of consumer confusion as to the origin of goods. The PPO held that contrary to the Kraft’s arguments, Marco Polo sign will primarily be associated by purchasers of goods with a famous explorer, because it is simply his name. However, PRINCE POLO sign, regardless of how it can be translated into Polish, is not used to identify a specific person and it is not a proper name. Despite the recognition of Kraft’s trade marks on the Polish market, the average consumer will associate MARCO POLO in the first place with a person of a traveler rather than as Kraft claimed with its PRINCE POLO trade marks. Therefore, the PPO rejected the notice of opposition. Kraft filed a complaint to the administrative court.

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 11 February 2010, case file VI SA/Wa 1988/09, agreed with the PPO’s assessment of the similarity and ruled that since the signs are not similar then the discussion about using someone else’s reputation is not justified. Dissimilar signs cannot cause association in consumer’s mind, so there can be no question of imitation, and conscious deriving of benefits from someone else’s reputation.

Kraft filed a cassation complaint to the Supreme Administrative Court. See “Trade mark law, case II GSK 746/10“.

Tax law, case I SA/Kr 60/10

April 7th, 2010, Tomasz Rychlicki

The Polish company which provides advertising services that are based on placing advertising banners on Internet websites requested the Minister of Finance to issue an individual interpretation of tax law. The company rents websites from individuals and companies for remuneration. Banner ads are placed on rented websites by using a computer software owned by the company. The owners of rented websites were required at the start of cooperation only to do a single interference/change in the code in order to make space on their websites for ads placed by the Company. This moment was treated as a commitment by the parties to the lease agreement and such a website was subject to use and benefits/usufruct. The owners of websites were not required to render to the Company (or its customers) any other additional steps. The company receives payments from its advertisers/customers according to the agreement, i.e. periodicaly for example monthly or once after the ad campaign ended.

The company asked whether income from remuneration for the lease obtained by individuals (private persons) who were not doing any business activity in this field, must be considered to sources mentioned in article 10(1) pt 6 of the Polish Act on Personal Income Tax – PITA – (in Polish: ustawa o podatku dochodowym od osób fizycznych) of 26 July 1991, Journal of Laws (Dziennik Ustaw) No. 80, item 350, with later amendments.

Article 10.
1. The sources of revenues shall include:
6) letting, subletting, lease, sublease and similar contracts, including also lease, sublease of special sectors of agricultural production and agricultural undertakings or parts thereof for non-agricultural purposes or for running special sectors of agricultural production, with the exception of assets used for commercial activities;

The company wanted to know whether it should be also acting as withholding agent, who is obliged to collect withholding income tax. The company argued that according to article 10(1) pt 6 and 44(1) pt 2 of the PITA it is not its duty. The Director of the Tax Chamber, acting under the authority of the Minister of Finance, held the position of the Company to be invalid. The Director and the Minister of Finance held that every time there was a service contract concluded between the company and the owners of websites and not the lease agreement, because the owner should be regarded as a person cooperating with the Company based on the fact that they have been required to comply with personal activities, i.e. one-time intervention in the code of a website, so that ads can appear on their website. Their revenues shall be defined as in article 10(1) pt 1 of the PITA.

Article 10.
1. The sources of revenues shall include:
1) service relationship, employment relationship, including cooperative employment relationship, farming or other agricultural production cooperative, homework, retirement or disability pension;

The company appealed. The Voivodeship Administrative Court (VAC) in Kraków in its judgment of 5 March 2010 case file I SA/Kr 60/10 held that a website is not either the tangible object/property or the right. It cannot therefore be subject to a lease within the meaning of the Polish Civil Code. However, according to the principle of contractual freedom, as the company correctly pointed out, it would be acceptable to conclude the so-called unnamed contract, which would be similar to the standard lease contract as provided by the regulations included in the Civil Code. The changes made in HTML code were just the technical operation.

See also “Tax law, case ILPB2/415-679/08-2/AJ“

Tax law and Internet, case I SA/Gd 17/10

April 7th, 2010, Tomasz Rychlicki

On 3 March 2009, a Polish citizen (P.W.) requested the Minister of Finance to provide a written interpretation of tax law on individual case concerning personal income tax with regard to taxation of interest on loans granted over the Internet. P.W. wanted to use an online social lending website, which activity is based on associating individuals who want to take out a loan or to grant one. Loan agreements are concluded directly between the lender and the borrower by making a declaration of will in the electronic form.

P.W. had asked whether lending money to individuals through a social lending site will be an economic activity within the meaning of article 5a pt 6 of the Polish Act on Personal Income Tax – PITA – (in Polish: ustawa o podatku dochodowym od osób fizycznych) of 26 July 1991, Journal of Laws (Dziennik Ustaw) No. 80, item 350, with later amendments.

6) non-agricultural commercial activities – it shall mean profit oriented, organized and continuing activities, run in one’s own name and on own or another person’s account, the revenues from which are not included in other revenues from the sources listed in Article 10.1 subparagraphs 1, 2 and 4-9;

P.W. argued that his activities do not have all the above mentioned characteristics, and therefore such project will not constitute an economic activity within the meaning of the PITA. P.W. argued that the use of office equipment which is necessary for granting a loan by the use of the online social lending website does not imply the organized nature of such activity. He drew attention to the fact that having own devices is not necessary for carrying out such activities, since these activities may also be performed in Internet cafe or by the use of a third party equipment. The existence of the terms of service provided by the website does not prove the organized nature of lending activities either. P.W. also noted that his activities would not be a continuous process, because the loans will be sporadic, depending on the currently available resources.

On 21 May 2009, the Minister of Finance issued a personal interpretation, in which it ruled the taxpayer’s position as incorrect and held that activities related to lending money that are conducted through the Internet via a social lending website are deemed as non-agricultural commercial activities. According to the Minister of Finance these activities are taken to profit on its own behalf and on its own interest. Such loans are given in an organized manner, i.e., to be able to make loans the applicant must be subject to rules (TOS) set by the system, it must have computer equipment and Internet access. The fact that loans are to be given once a month, proves that these are not sporadic or one-time events and in consequence argues for recognition of the continuous nature of such actions.

P.W. did not agree with such interpretation and filed a complaint to the Voivodeship Administrative Court (VAC) in Gdańsk. The VAC in a judgment of 9 March 2010, case file I SA/Gd 17/10 rejected the complaint and upheld the interpretation of the Minister of Finance.

Trade mark law, case II GSK 387/09

March 30th, 2010, Tomasz Rychlicki

Tianjin Cosmetics Scientific – Technical Research Institute Co., Ltd from China filed a request for invalidation of PULANNA R-76294 and PULANNA R-76424 trade marks. The company from China claimed that the person who applied for the protection of these two trade mark was acting as a Polish agent of Tianjin Cosmetics Scientific and he has concealed the fact of both trade mark applications and subsequent registrations.

The Supreme Administrative Court in a judgment of 17 February 2010 case file II GSK 387/09 ruled that to the extent as follows from an international agreement, where a trademark has been applied for protection by and on behalf of, or the right of protection has been granted for, an agent or a representative of the person enjoying the exclusive right to use that trademark in another country, that person may, if the agent or representative acted without that person’s consent, demand that the protection granting proceeding be discontinued or the right of protection revoked. He may also demand that the right of protection be granted on his behalf, or the right already granted transferred to him. The right may not be demanded to be revoked or transferred, where the entitled person has acquiesced, for a period of five successive years, in the use of the registered trademark while being aware of such use. Moreover, the facts of each case are examined on the date of trade mark application. See also “Trade mark law, case II GSK 950/08“.

Trade mark law, case II GSK 335/09

March 24th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 4 November 2008, case file VI SA/Wa 1529/08 dismissed the complaint brought by Fashion Group Sp. z o.o. against the decision of the Polish Patent Office (PPO) of 2008, case no. Sp. 504/06, on the discontuance of proceedings in case of the invalidation of the right of protection granted for OSKARY MODY R-178091 trade mark.

Fashion Group based its legal interest on provisions on the freedom of establishment and the existence of its exclusive right to OSKARY MODY R-180722 trade mark. Fashion Group also claimed that MEDIA SUKCES s.c., the owner of the questioned trade mark, published press information indicating alleged violation of its trade mark rights by Fashion Group, which involved a risk of legal proceedings.

The PPO and the VAC denied the existence of legal interest on Fashion Group side. The company filed a cassation complaint. The Supreme Administrative Court in a judgment of 9 February 2010, case file II GSK 335/09, ruled that a competitor has a legal interest in seeking the invalidation of the same registered trade mark as his right of protection, if the owner of such an identical trade mark took any action based on demanding for the cease and desist of use, or negating the right of its competitor.

See also “Trade mark law, case II GSK 774/08” and “Trade mark law, case II GSK 503/08“.

See also Berenika Depo’s article “Same procedure every year: locus standi as an effective barrier to trade mark revocation for non-use in Poland” published in Journal of Intellectual Property Law & Practice, 2010 5(1):55-64; doi:10.1093/jiplp/jpp186.

Procedural law, case II FPS 8/09

March 23rd, 2010, Tomasz Rychlicki

The Supreme Administrative Court in its judgment of 15 February 2010 case file II FPS 8/09 held that if the reasons of the judgment of the Voivodeship Administrative Court do not include a position as to the facts adopted as the basis for the contested decision, it may constitute an independent basis for the cassation appeal.

Categories: Art. 141 §4 PBAC | Art. 174 PBAC | case law | Polish Act on Proceedings Before Administrative Courts | Polish Supreme Administrative Court.

Personal interest, case I C 1272/09

March 19th, 2010, Tomasz Rychlicki

The District Court in Wrocław in its judgment of 18 March 2010 case file I C 1272/09 ruled that the advertising of one of the Polish banks that promoted payment cards in such a way that it used profile pictures of users of nasza-klasa.pl website infringed their personal rights. A user who logged into his or her profile was presented with an advertising that showed his or her face/image placed on credit card together with a slogan “your card for your personal account may look like this”. The Court held that users agreed to the provisions of the terms of service, but the permission to use their pictures concerned solely the purpose of social networking, not advertising. The Court ordered the owner of nasza-klasa.pl to pay the plaintiff 5000 PLN as a compensation. This judgment is not yet final.

Patent law, case II GSK 245/10

March 18th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in a judgment of 15 November 2009, case file VI SA/Wa 906/09 ruled that the scope of the European patent is the same as in the case of a national patent granted, and the case law of individual member states presents different approaches to the examination of the patentability of inventions using computer software. Article 27 of the PCT cannot be treated as a ban on the use of individual interpretation to assess the patentability of the invention for the protection of which one is applying. Article 27(5) of the PCT provides that the contracting States have flexibility in setting the conditions for patentability.

In this case, the PPO exhaustively referred to the fact of the grant of an European patent for the questioned invention and indicated the reasons for which it did not grant patent rights in Poland. Undoubtedly for the VAC, it was hard not to notice the importance of the referral by the President of the European Patent Office (EPO), to the Enlarged Board of Appeal of the EPO on the fundamental issues relating to the interpretation of articles 52 EPC in relation to computer programs. See case G 3/08, application filed on 22 October 2008. The questions asked by Alison Brimelow reflect the concerns and divergent interpretations which source is located in the line of EPO case law aiming to over-extend the concept of “patentability of inventions”. At the date of hearing of the case the mentioned referral was not considered by the Enlarged Board of Appeal of the EPO. Therefore, the unified position on the examination of the patentability of inventions using computer programs/software, which could be addressed by Member bound by EPC, did not exist yet. Given the above, the VAC held that the complaint should be dismissed because it did not include proper basis.

The Supreme Administrative Court in its judgment of 10 February 2011 case file II GSK 245/10 reversed this judgment and set the case back to the VAC for reconsideration.

See also “Patent law, case VI SA/Wa 2566/08“.

Trade mark law, case VI SA/Wa 1074/06

March 16th, 2010, Tomasz Rychlicki

I was so fascinated with the use of the law of prägnanz by the Polish court that I decided to look for something more. I was very surprised with my discovery.

On 24 October 2004, Diesel Company, seated in Molvena, Italy filed a notice of opposition to a final decision of the Patent Office on the grant of a right of protection to DSL R-148054 trade mark. According to Diesel S.p.A., DSL R-148054 trade mark was similar to DIESEL R-73457 and DIESEL IR-608499 trade marks. The Polish Patent Office in a decision of 9 January 2006, no. Sp.88/05, rejected the opposition. Diesel Company filed a complaint to the Voivodeship Administrative Court (VAC) in Warsaw. The VAC in judgment of 16 November 2006, case file VI SA/Wa 1074/06, said the following.

It should be noted that one can manipulate the external context, and by influencing the human experience, one can manipulate the internal context. The law of proximity states that elements close to each other compared with other, more distant elements form the figure. The law of similarity based on the law of proximity in relation to similar elements, indicates that human perception can give rise to a new separate figures, and a new association. Next, the law of closure indicates that the perceptual system adds the missing elements and closes the form of incomplete figures. It should be noted that the human being creates the perceived reality based on the interaction of knowledge that flows from the various branches and experience, with received stimuli. So it may be, in this case. Human knowledge derived from other branches of science may “complete” the lack in the designation and close this sign. Thus, the internal context may allow for the law of closure, i.e. for the full reading of the meaning of the word. In turn, the law of symmetry with the use of the simplicity of perception of an object can lead to the fact that elements close to each other, form a mild integrity and the independent shape.

R-148054

In this case, the VAC correctly quoted its source. These are excerpts from A. Falkowski, T. Tyszka Psychologia zachowań konsumenckich, (in English: Psychology of Consumer Behavior), Gdańskie Wydawnictwo Pedagogiczne, pp. 24-26.

Tax law, case I FSK 1520/09

March 15th, 2010, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 10 March 2010, case file I FSK 1520/09 held that the free of charge transfer of advertising materials for purposes related to operating a company is not deemed as supplying the goods and therefore not subject to value added tax as defined in article 7(2) and (3) of the Act on Goods and Services Tax – GSTA – (in Polish: ustawa o podatku od towarów i usług) of 11 March 2004, Journal od Laws (Dziennik Ustaw) No. 54, item 535.

Article 7.
1. The supply of goods, referred to in Article 5.1.1, shall mean the transfer of the right to dispose of the goods as owner, including also:

1) transfer under an order made by a public authority or an entity acting in the name of such an authority, or transfer in pursuance of the law, of the ownership of the goods against payment of compensation;

2) release of goods under the tenancy, lease or a similar contract concluded for a definite period of time, or a credit sale contract, if the contract provides that in the normal course of events envisaged in that contract or upon payment of the last instalment, ownership shall be passed;

Categories: advertising law | case law | Polish Act on Goods and Services Tax | Polish Supreme Administrative Court | tax law.

Internet websites, case I C 1532/09

March 13th, 2010, Tomasz Rychlicki

The Observatory of Media Freedom in Poland run by the Helsinki Foundation for Human Rights reported on a case of Augustyn Ormanty, the mayor of Kalwaria Zebrzydowska town, who sued Tomasz Baluś, the administrator of naszakalwaria.pl website, for personal rights infringement after he found that the website hosted defamatory comments directed to his person. Mr. Ormanty decided to request the court to order the removal of 18 comments because he received negative response from Tomasz Baluś who claimed that these questioned statements put in the form of comments to information published at his website, are the individual opinions of people who wrote it, for the content of which, Tomasz Baluś is not responsible, because they are owned by their authors.

The District Court I Civil division in Kraków in a judgment of 11 MArch 2010 case file I C 1532/09 ruled that naszakalwaria.pl website cannot be deemed as the press according to provisions of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendmets, because it did not meet the criterion of periodicity. The court noted that naszakalwaria.pl website is rather a collection of publications and serves as a wall on which people are able to post their comments. The court emphasized that the purpose of Internet portals, such as naszakalwaria.pl is primarily to initiate and shape public debate on issues important to the local community. The court added that the Internet is, in principle, free from control and could be subject to control only, if it fits the regulation provided in the APL. The court also stated that Augustyn Ormanty failed to prove that the offensive – in his opinion – comments related to the facts. According to the Court, they were rather opinions, which in principle cannot be judged based on the criterion of truth and falsehood.

In addition, the court held that Tomasz Baluś had a limited capacity for meticulousy checking and editing of the entries appearing on the forum of his website because of their large numbers. The court stated that the measures taken by the Mr. Baluś to search and control the entries for vulgarity and to remove obviously insulting comments were sufficient. According to the Court, Mr. Ormanty had a possibility and the right to request the removal of comments he found insulting, based on provisions of Article 14 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.

1. A person who gives access to the contents of a network IT system to a customer, where the customer stores data, is not aware of the illegal features of the data or activity connected with the data and upon receiving an official notification or credible information about the illegal features of the data or activity connected with it, immediately bars access to the data, shall not be responsible for the data.
2. A Service provider who has received the official notification of an illegal character of the stored data that was supplied by the customer, and prevented the access to the data, shall not be liable to the customer for damages resulting from preventing access to such data.
3. A service provider who has received credible information of the illegal character of the stored data supplied by the customer and prevented access to the data, shall not be liable to the customer for the damage resulting from preventing access to such data, if it has immediately notified the customer of the intention to prevent access to data.

The court pointed out to the argument stating that the mayor is a public figure who must reckon with the fact that its activities may be subject to criticism. As a public figure, Mr. Ormanty should show greater resistance to critical opinions, negatively evaluating the performance of the functions entrusted to him. In conclusion, the Court added that the law has not kept pace with the development of modern technology and therefore, it does not precisely regulate the issues of freedom of expression in the Internet. Therefore, the careful evaluation of such situations, is entrusted to the judges. Their task is to ensure and guarantee the freedom of expression in similar cases.

Trade marks and taxes, case IPPB1/415-288/09-2/AG

March 12th, 2010, Tomasz Rychlicki

A Polish taxpayer being also an entrepreneur has requested the Director of the Tax Chamber in Warsaw to issue an interpretation to a question whether by contributing a trade mark to a general partnership (ordinary partnership), he would receive a revenue that is subject to personal tax income. The right of protection for a trademark was granted by the Polish Patent Office. The taxpayer received revenue from licensing the use of that trade mark. However, he decided to form a general partnership, to which he wanted to make a contribution in a trade mark, based on its market value. The partnership would treat such trade mark as a legal and intangible asset and would make it available to other entities under a license agreement. The entrepreneur was also considering the possibility to sale his right of protection for the trade mark to another entity if the general partnership would not count it as the intangible asset.

He argued that making a contribution to a partnership, such as general or ordinary one (these are not having a status of a legal person), is not a source of revenue in personal income tax. His opinion was based on provisions of article 17(1) pt. 9 of the Polish Act of 26 July 1991 on Personal Income Tax – PITA – (in Polish: ustawa o podatku dochodowym od osób fizycznych), published in Journal of Laws (Dziennik Ustaw) No. 80, item 350, with subsequent amendments

Revenues from financial capital shall be:
9) par value of shares (stocks) of an incorporated company or shares of a cooperative societ received in exchange for a non-financial contribution;

The Director of the Tax Chamber in Warsaw in the interpretation of 25 June 2009, no. IPPB1/415-288/09-2/AG, concluded that the contribution of a trade mark to a general partnership is considered as a sale. The value of a trade mark that was established in the partnership contract serves as a basis to set the revenue from financial capital. Therefore, according to article 14(2) pt. 1 of the PITA it is a revenue from commercial activity of a contributing person. The Director of the Tax Chamber referred to article. 4 § 1 of the Code of Commercial Companies, under which the general partnership is a partnership, which may on its own behalf acquire the rights, including real property and other property rights, to incur obligations, may sue and to be sued – it has legal capacity but not the legal personality (a private company not an incorporated one). A non-financial contribution causes a transfer the ownership of things or rights to a general partnership because the capital share of the partner shall equal the value of the contribution effectively made. From the viewpoint of the civil law regulations, it is a payable sale of things or rights. Because the general partnership has no legal personality separate from its partners, therefore is not subject to personal tax income. Only partners are subject to personal tax income in such case.

See also “Trade marks and taxes, case II FSK 1003/08” and “Trade mark law, I SA/Rz 249/09“.

Trade mark law, case VI SA/Wa 233/09

March 8th, 2010, Tomasz Rychlicki

The Polish Patent Office invalidated the right of protection for 3MA R-171362 trade mark owned by the Polish company MARMA Polskie Folie Sp. z o.o. The proceeding were initiated by the 3M Company, the owner of 3M R-84046 and word-figurative 3M R-84047 trade marks. The American company has claimed the reputation of its signs and argued that the registration of 3MA R-171362 trade mark would bring its owner unfair advantage and it would be detrimental to the distinctive character and the reputation of 3M’s trade marks. The complaint of MARMA Polskie Folie Sp. z o.o. company was rejected by the Voivodeship Administrative Court in Warsaw in a judgment of 9 October 2009, case file VI SA/Wa 233/09.

The VAC ruled that in the absence of a legal definition of the reputation it was the legal doctrine and the courts who have defined the essential criteria for determining the reputation of the trade mark. Accordingly, the reputation of the trade mark is associated with the established opinion among customers about the characteristics of the goods bearing the mark. The reputation is not a simple consequence of the use and circulation of a trade mark, but it’s also a well-established and deeply rooted image in the consciousness of buyers of vital goods. The reputation of a trade mark is a result of the care for the high quality of products, the consistent preservation of a sign on the market by long and intensive advertising. An established reputation of a trade mark occurs when the quality of the goods bearing the sign satisfy customers who can easily recognize it and connect with the goods marked by the proprietor, even if it means that the goods are placed on the market for the first time. The reputation of a trade mark means its attractive value of advertising, the positive perceptions of the goods bearing the sign. In assessing whether the sign is reputed, one cannot take into the account only the degree of knowledge of a sign among the customers and the extent and intensity of advertising of goods bearing the sign, but also the quality of these goods. Prizes and certificates awarded for the goods bearing the sign, expert opinions and presentation of the goods at trade fairs in order to promote products also show the reputation of the trade mark. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

See also “Poland: proving the fame of a trade mark“.

Tax law, case II FSK 1003/08

March 3rd, 2010, Tomasz Rychlicki

The Supreme Administrative Court in a judgment of 20 November 2009, case file II FSK 1003/08, confirmed the rule that the Polish taxpayer is allowed only for the depreciation of the registered trade mark. This judgment was based on provisions of Article 16b(1) pt. 6 of the Polish Act of 15 February 1992 on the Legal Entities’ Income Tax – LEIT – (in Polish: Ustawa o podatku dochodowym od osób prawnych), consolidated text published in Journal of Laws (Dziennik Ustaw) of 2000, No. 54, item 654 with subsequent amendments.

The following intangible assets, acquired and fit for commercial use as at the date of acceptance for use, shall be depreciated, subject to Article 16c:
(6) rights to: inventions, patents, trade marks, designs.

The SAC ruled that the priority to obtain the right of protection for a trade mark which is determined according to the date of filing of a trademark application with the Polish Patent Office (PPO) is something different than the possibility of introducing such a right in the records of intangible assets, which is allowed by the LEIT only after the PPO issued a positive decision on the grant of a right of protection for a trademark. Such a decision is always taken after having established that the statutory requirements for the grant of the right have been satisfied. Having only a priority does not guarantee such situation will take a favourable turn.

See also “Tax law, case I SA/Rz 249/09“.

Personal interest, case I ACa 1176/09

February 26th, 2010, Tomasz Rychlicki

In the summer of 2008, a popular Polish tabliod Super Express published a nude picture of Justyna Steczkowska that was taken on a Turkish beach during her holidays. The singer sued the publisher for the violation of privacy interest. The Appellate Court in Warsaw in a judgment of 24 February 2010, case file ACa 1176/09, awarded Justyna Steczkowska 80000 PLN compensation and ordered Super Express to publish an apology. The court held that there is no implied consent to the intrusion into privacy, even though it was the hotel’s private beach and a photographed person wasn’t too cautious.

Polish regulations on pharmaceutical trade marks

February 1st, 2010, Tomasz Rychlicki

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.

I.A. Substantive law

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 of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments, defines the requirements for obtaining trademark protection in the Republic of Poland. There are related regulations that are issued for the purpose of implementation of the IPL.
The Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No 47, item 211, with later amendments.
The Polish Act on Pharmaceutical Law – PHL – (in Polish: ustawa prawo famraceutyczne) of 6 September 2001, published in Journal of Laws (Dziennik Ustaw) of 2008, No 45, item 271, with later amendments, defines pharmaceutical/medicinal product. Of course, there are several related regulations to the PHL and the case-law of Polish courts. The PHL is almost entirely based on EU principles.

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 later amendments.
Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, Journal of Laws (Dziennik Ustaw) No 43, item 296, with later amendments.
Act on Patent Attorneys – APAT – (in Polish: ustawa o rzecznikach patentowych) of 11 April 2001, Journal of Laws (Dziennik Ustaw) No. 49, item 509, with subsequent amendments.

I.C. Case law
See “Polish case law on advertising of pharmaceuticals“.

I.D. EU law
Moreover, all EU regulations and the judgements of the Court of Justice (COJ) of European Union relating to pharmaceutical issues are directly applicable in the Republic of Poland.

II. National bodies and procedures concerning pharmaceutical trade marks
The right of protection for a sign being capable to be registered as a trade mark is granted by the Patent Office of the Republic of Poland (PPO), while the Polish Ministry of Health controls the registration process and approval procedure for medicinal products. Registration of signs for medicinal products is governed by the procedure and requirements set by the Office for Registration of Medicinal Products, Medical Devices and Biocidal Products (ORMP), a government agency competent for the evaluation of the quality, efficacy and safety of medicinal and biocidal products, as well as medical devices.

The Main Pharmaceutical Inspector (MPI) is the central organ of public administration, executing her/his duties with the assistance of the Main Pharmaceutical Inspectorate and the MPI is authorized to ensure compliance with pharmaceutical regulations in the context of advertising. Main Pharmaceutical Inspector is the appeal institution in matters connected with executing tasks and competences of Pharmaceutical Inspection (the institution of second instance with regard to decisions of the provincial pharmaceutical inspector). Appeals against MPI’s decisions are filed before the Voivodeship Administrative Court (VAC) in Warsaw. Further appeal should be brought in the form of a cassation complaint with the Supreme Administrative Court (SAC).

An entity seeking to produce or import medicinal products must file an application for approval with the Inspectorate. The application must specify the medicinal name of the product and any other commonly used names (INN).

III. Names of medicinal products and trademarks
A trade mark under the Polish law can be any sign capable of being represented graphically, provided that such signs are capable of distinguishing the goods of one undertaking from those of other undertaking. The following, in particular, may be considered as trademarks: words, designs, ornaments, combinations of colours, the three-dimensional shape of goods or of their packaging, as well as melodies or other acoustic signals. Rights of protection will not be granted for signs which are a subject of absolute or relative grounds for refusal.

A medicinal product is defined as a substance or mixture of substances presented as having properties for treating or preventing disease in humans or animals, or given to make the diagnosis or to restoring, improving or modifying physiological functions through the pharmacological, immunological or metabolic effect. The the provisions of the PHL also apply to products that meet the criteria for both medicinal product and another type of product, in particular dietary supplement or cosmetic (as defined by separate regulations).

Pharmaceutical trade marks not only need to comply with the provisions of the IPL, but also need to meet the requirements regarding names of pharmaceutical products contained in the PHL. Pursuant to these regulations, a pharmaceutical name can be:

an invented name, as long as it does not cause confusion with a common name (i.e., an international non-proprietary name (INN) recommended by the World Health Organization or, if such name has not been attributed to a given product, a common chemical name) or
a common, or scientific name accompanied by a trademark, a company name or the name of the marketing authorization holder.

Obtaining an authorization for the release of a medicinal product under a given name does not exempt an entity from liability if the name violates third-party trademark rights. Applicants must therefore also keep in mind the provisions of the IPL and the CUC.

An announcement of the president of the ORMP issued on March 12 2008 gives further guidance on the process of naming medicinal products and the substitution of names that have already been granted. It sets out the following instructions:
– The new name of a medicinal product should differ from an earlier registered product name in at least three letters and the new name cannot include a sequence of more than two of the same letters. An applicant is required to provide a justified written statement when seeking a waiver from these rules.
– The new name cannot result in the likelihood of confusion (in print, spelling and pronunciation) with an earlier registered name.
– Signs such as ® and ™ cannot form part of the new name.
– The name of a medicinal product cannot contain personal names and surnames, including the name of the inventor. Further, it must not contain:
1. Names of abstract persons that are used together with scientific titles, aliases or pseudonyms.
2. Expressions which bring to mind religious, geographical or historical associations.
3. Names of natural objects.
4. Obscene words or words suggesting obscene content.
– The name of the medicinal product must also be placed on the packaging in the Braille system.

The evidence of registration of a medicinal product name with the ORMP can act as evidence of use of the sign as at that date when attempting to protect the name as an industrial property right.

IV. Parallel imports and repackaging
Parallel importation into Poland of a pharmaceutical product from other EU member states or members of the European Economic Area (EEA) is acceptable provided that it meets all of the following conditions:

The parallel-imported medicinal product must have the same active ingredient(s) as the product authorized for marketing in the territory of the Republic of Poland (i.e., the same indications at least up to the third level of the Anatomical Therapeutic Chemical (ATC) or the ATC veterinary.
The parallel-imported product must have the same strength and administration route as the authorized product, as well as the same or similar form. Slight differences in form cannot lead to any therapeutic differences between the products.
Where the product authorized for marketing in Poland is a brand name pharmaceutical, the parallel import must also be the brand name product. Similarly, where the authorized product is a generic, the parallel-imported pharmaceutical must also be a generic.

A parallel importation licence is available on application to the Polish Health Minister. The licence is issued on the basis of an assessment report prepared by the president of the ORMP. The application must include a sample of the packaging and the product information leaflets. A licence is granted for a period of five years.

According to article 21a(9) of the PHL, a parallel importer is allowed place the pharmaceutical product on the market in the Republic of Poland under:

the name used in Poland,
the name used in the EU/EEA member state of origin, or
the common name (INN) or scientific name together with the trademark or name of the parallel importer.

A parallel importer intending to put a medical product on the Polish market must inform the holder of the marketing authorization in Poland as to the expected date of entry onto the market at least 30 days before such date.

In order to place a product on the market, the parallel importer must alter the packaging thereof to adhere to local standards. The packaging must comply with that approved in the import licence. Polish authorities generally require the repackaging of parallel-imported medical products into new boxes that contain informational leaflets for patients in Polish. The informational leaflet must also be consistent with the parallel import licence.

The first parallel-imported medical products were placed on the Polish market in November 2005. As of the end of March 2008, over 200 parallel import licences had been granted in Poland.

The process of repackaging frequently causes disputes between parallel importers and mark owners. However, there is no case law in Poland with regard to this issue at present.

V. Anti-counterfeiting and enforcement
The responsibility for combating the trade and distribution of counterfeit medicines in Poland falls on the bodies responsible for the prosecution of crime – the Police, the Custom Service (detection and seizure of imported counterfeit medicines) and the Public Prosecutor’s Office. According to the official data published by the Ministry of Finance, 1,356 counterfeit packages of medicine were seized at the Polish borders in 2007, while 1,700 packages were seized within the first three months of 2008. According to the Main Pharmaceutical Inspectorate, 99% of medicines offered for sale from illegal sources are counterfeit and are hazardous to life or health.

VI. Advertising of pharmaceutical products
The PHL sets out the requirements for advertising pharmaceutical products in Poland. The advertising of medicinal product has also to be made in accordance with the current Regulation of the Minister of Health on the advertising of medicinal products of 21 November 2008, Journal of Laws (Dziennik Ustaw) No 210 item 1327. Advertising a medicinal product shall mean any activity consisting in informing about and encouraging to use the medicinal product, with the purpose of increasing the number of prescriptions, delivery, sale or consumption of the medicinal product.

Among others, the following activities are seen as advertising of pharmaceutical products:

Advertising of pharmaceutical products addressed to the public,
Advertising of pharmaceutical products addressed to individuals authorized to issue prescriptions or involved in the distribution of pharmaceutical products,
The visiting by sales or medical representatives of individuals authorized to issue prescriptions or involved in the distribution of pharmaceutical products,
The provision of pharmaceutical product samples,
Sponsoring promotional meetings for individuals authorized to issue prescriptions or involved in the distribution of pharmaceutical products
and
Sponsoring scientific conferences, meetings and congresses for individuals authorized to issue prescriptions or involved in the trade of pharmaceutical products.

It should note that the Polish legislature did not apply the correct legislative techniques and thus the PHL includes different concepts with different contents of which makes a mess of the legal terminology. It is also the problem of the European legislator because the same problem also applies to article 86 of the Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use.

Pharmaceutical products may be advertised exclusively by the parties responsible for the products or by persons who have been commissioned by such parties.

An advertisement for a pharmaceutical product cannot be misleading. It should present the product objectively and inform about its rational use. Further, the following types of advertising are prohibited:

Advertising offering or promising any advantages in a direct or indirect manner in return for purchasing the product, or providing any evidence of having purchased the product.
Advertising addressed to children or containing any element which might be considered as being addressed to children.
Advertising of pharmaceutical products that have not been admitted for trade in the territory of Poland or contain information which is inconsistent with the officially approved pharmaceutical product description.

Special restrictions are also imposed on advertising directed to specialists and the public.

VII. Generic substitution
Generic substitution is allowed under Polish law. Generic drug names comprise the name of the company producing the medicine together with its INN or invented name.

VIII. Online issues – e-pharmacies, domain names
The market turnover of medicinal products takes place only under the terms and conditions laid down by the PHL’s regulations. Conducting the sale of medicines is reserved for “public pharmacies”. In addition, the right of the retail resale of certain drugs without a prescription and some prescription drugs is granted to “pharmacy points”. The sale of selected drugs without a prescription can be also conducted by the so-called “out-pharmacy market post”: herbal-medical shops, specialized medical supplies stores, pet shops, herbal/chemists shops/drugstores, and public shops – provided that the staff have appropriate qualifications. The law precisely regulates all features that the public pharmacy should have and the pharmacy point. It already implies the existence of the physical premises open to the public and intended to pursue the sale of drugs. The PHL authorized public pharmacies and pharmacy points to conduct the mail-order sale for public only for medicines purchased without a prescription (article 68 (3) of the PHL). Additionally, the term “pharmacy” is a reserved name that is legally protected under the PHL and criminal law, as well as unfair competition regulations. Any entity wishing to use the term “pharmacy” must meet strict regulatory requirements. Online operators that do not meet the conditions set by the regulations on pharmacies can neither use the term “pharmacy” nor trade in pharmaceutical products.

Where a domain name including a trade mark has been registered by an unauthorized third party, the mark owner can use mediation, alternative dispute resolution (ADR) proceedings or civil court action to obtain the cancellation or transfer of such domain. However, following a recent judgement of the Polish Competition and Consumer Protection Court of 26 December 2006, case act signature XVII AmC 170/05, ADR is unlikely to succeed if the disputed domain name is registered in the name of a natural person.

Polish case law on e-access to public information

January 21st, 2010, Tomasz Rychlicki

Below, you will find a list of judgments on e-access to public information. By “e-access to public information” I mean all issues related to obtaining public information through or with the help of IT technology. You can find a more detailed discussion on each judgment under the link provided with the case file. All judgments are given in chronological order.

– The judgment of the Voivodeship Administrative Court of 15 March 2013 case file II SAB/Wa 513/12.

– The judgment of the Voivodeship Administrative Court of 18 December 2012 case file II SAB/Wa 335/12.

– The judgment of the Voivodeship Administrative Court in Kraków of 26 November 2012 case file II SAB/KR 152/12.

– The judgment of the Voivodeship Administrative Court in Warsaw of 24 October 2012 case file II SAB/Wa 245/12.

– The judgment of the Voivodeship Administrative Court in Kraków of 18 September 2012 case file II SAB/Kr 105/12.

– The judgment of the Supreme Administrative Court of 14 September 2012 case file I OSK 1203/12.

– The judgment of the Voivodeship Administrative Court of 13 July 2012 case file II SAB/Wa 30/12.

– The judgment of the Supreme Administrative Court of 21 June 2012 case file I OSK 730/12.

– The judgment of the Supreme Administrative Court of 21 June 2012 case file I OSK 666/12.

– The judgment of the Voivodeship Administrative Court in Lublin of 20 March 2012 case file II SAB/Lu 10/12.

– The judgment of the Supreme Administrative Court of 3 February 2012 case file I OSK 2172/11.

– The judgment of the Voivodeship Administrative Court in Gliwice of 19 September 2011 case file IV SA/Gl 1002/11.

– The judgment of the Voivodeship Administrative Court in Gliwice of 2 August 2011 case file II SAB/Wa 86/07.

– The judgment of the Supreme Administrative Court of 3 August 2010 case file I OSK 1727/09.

– The judgment of the Regional Court Katowice Wchód in Katowice of 27 April 2010 case file I C 19/10.

– The judgment of the Voivodeship Administrative Court in Szczecin of 16 December 2009 case file II SAB/Sz 148/09.

– The judgment of the Voivodeship Administrative Court in Warsaw case file II SAB/Wa 57/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 10 December 2007 case file II SAB/Wa 86/07.

– The judgment of the Supreme Administrative Court of 14 March 2006 case file I OSK 190/06.

Polish case law on industrial designs

January 12th, 2010, Tomasz Rychlicki

Below, you will find a list of judgments on industrial designs that were decided upon in administrative proceedings. Finding cases that are decided upon in civil proceedings is more problematic becasue they are rarely available to general public. You can find a more detailed discussion on each judgment under the link provided with the case file. All judgments are given in chronological order.

– The judgment of the Voivodeship Administrative Court of 16 February 2012 case file VI SA/Wa 1744/11.

– The judgment of the Voivodeship Administrative Court in Warsaw of 4 October 2010 case file VI SA/Wa 736/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 3 October 2010 case file VI SA/Wa 1339/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 20 September 2010 case file VI SA/Wa 852/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 13 September 2010 case file VI SA/Wa 922/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 13 September 2010 case file VI SA/Wa 921/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 23 June 2010 case file VI SA/Wa 505/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 16 June 2010, case file VI SA/Wa 134/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 27 May 2010, case file VI SA/Wa 506/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 19 May 2010 case file VI SA/Wa 2026/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 12 May 2010 case file VI SA/Wa 599/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 12 May 2010 case file VI SA/Wa 598/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 11 May 2010 case file VI SA/Wa 504/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 26 February 2010, case file VI SA/Wa 34/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 23 February 2010, case file VI SA/Wa 1038/09.

– The judgment of the Supreme Administrative Court of 20 January 2010, case file II GSK 323/09.

– The judgment of the Supreme Administrative Court of 16 December 2009, case file II GSK 238/09. This judgment was issued on the basis of the cassation complaint brought from the judgment of the Voivodeship Administrative Court in Warsaw, of 11 December 2008, case file VI SA/Wa 1827/08.

– The judgment of the Voivodeship Administrative Court in Warsaw of 15 December 2009, case file VIII SA/Wa 332/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

– The judgment of the Voivodeship Administrative Court in Warsaw of 14 December 2009 case file VI SA/Wa 1764/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 14 December 2009 case file VI SA/Wa 1727/09.

– The decision of the Supreme Administrative Court of 9 December 2009, case file II GSK 772/09.

– The Judgment of the Voivodeship Administrative Court in Warsaw of 4 December 2009 case file VI SA/Wa 1706/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 19 November 2009, case file VI SA/Wa 703/09. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

– The judgment of the Voivodeship Administrative Court in Warsaw of 13 November 2009, case file VI SA/Wa 1376/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 9 October 2009, case file VI SA/Wa 189/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 29 September 2009, case file VI SA/Wa 211/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 19 August 2009, case file VI SA/Wa 664/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 10 June 2009, case file VI SA/Wa 498/09

– The judgment of the Voivodeship Administrative Court in Warsaw of 21 July 2009, case file VI SA/Wa 518/09.

– The judgment of the Supreme Administrative Court of 17 June 2009, case file II GSK 1034/08.

– The judgment of the Voivodeship Administrative Court in Warsaw of 8 June 2009, case file VI SA/Wa 536/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 2 June 2009, case file VI SA/Wa 502/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 4 April 2009, case file VI SA/Wa 109/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 4 February 2009, case file VIII SA/Wa 332/08.

– The judgment of the Supreme Administrative Court of 27 January 2009, case file II GSK 612/08.

– The judgment of the Voivodeship Administrative Court in Warsaw of 11 December 2008, case file VI SA/Wa 1827/08. The cassation compliant bought before the Supreme Administrative Court was rejected in a decision of 16 December 2009, case file II GSK 238/09.

– The judgment of the Voivodeship Administrative Court of 21 November 2008, case file VI SA/Wa 710/08.

– The judgment of the Voivodeship Administrative Court in Warsaw of 4 November 2008, case file VI SA/Wa 1053/08.

– The judgment of the Voivodeship Administrative Court in Warsaw of 11 August 2008, case file VI SA/Wa 1088/08.

– The judgment of the Voivodeship Administrative Court in Warsaw of 10 June 2008, case file VI SA/Wa 543/08.

– The judgment of the Voivodeship Administrative Court in Warsaw of 4 November 2008, case file VI SA/Wa 1054/08.

– The judgment of the Supreme Court – Civil Chamber of 23 October 2007, case file II CKS 302/07.

– The judgement of the Voivodeship Administrative Court in Warsaw of 11 October 2007, case file VI SA/Wa 1215/07.

– – The judgment of the Supreme Administrative Court of 20 March 2007, case file II GSK 277/06, published in the electronic database LEX, under the no 321283.

– The judgment of the Supreme Administrative Court of 18 January 2007 case file II GSK 206/06

See also “Polish regulations on industrial designs“.

Copyright law, case I CSK 160/09

January 11th, 2010, Tomasz Rychlicki

The Polish Supreme Court in its judgment of 16 November 2009 case file I CSK 160/09 confirmed that no consent of the portrayed sportsmen is necessary for the athletics association to make such images available to the sponsors. The judgment came out as a result of a heated dispute between the Polish national football (soccer) team player Maciej Żurawski and TP S.A. (a telecommunication company) – the official sponsor of the team. The dispute regarded the unauthorized dissemination of Żurawski’ s image by TP S.A. in its various advertising and informational materials (such as fliers, posters, press and television). Żurawski desired that TP S.A. ceased to publish and disseminate his images and that it publicly apologized to him. The proceedings were joined by the Polish Football Association (PZPN) as a third party defendant. The bone of contention in this case were the pictures taken during the photo shoot of the national soccer team prior to the world championship in Germany in 2006. The story goes that in 2004, PZPN entered into a sponsorship agreement with TP S.A., pursuant to which PZPN obliged itself to:

1) allow TP S.A. to use the pictures of the national team in all of TP S.A. advertising and informational materials; and
2) to obtain the respective players’ consent to do so.

In 2006 the national football team participated voluntarily in a photo shoot. All players were duly informed as to what purposes the pictures would serve, and how they would be used. However, no formal consent forms were signed. The players did not sign any Representative’s Cards (which explicitly stated the player’s obligation to participate in events such as i.e. the photo session in question) either. Additionally, none of the players received any remuneration for the photo session. And that’s what’s most problematic in this case. Pursuant to article 81 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, the right to disseminate the image of a person does not require the consent of that person (unless explicitly stated otherwise) if that person had received an agreed to remuneration.

The Court of first instance found for Zurawski, however the appeal court reversed and dismissed the case. The reason of that were differing interpretations of article 33(2) of the Act on Qualified Sports – AQS – (in Polish: Ustawa o sporcie kwalifikowanym) of 29 July 2005, Jurnal of Laws (Dziennik Ustaw) No 155, item 1298, with subsequent amendments, which was relied on by TP S.A. and PZPN in their argumentation.

each member of the national team, grants an exclusive right to his/her image in the national representation team outfit, to an appropriate athletics association, which is then entitled to use that image for economic purposes within the scope set forth in the Statute of that association or other international organization active in that field.

However, the very same article in sec. 2 states that the representative does indeed give his/her consent to disseminate his/her image in the national representation team outfit, however he/she does that within the meaning of article 81(1) of the ARNR. And this led to two different interpretations by two different courts: court of I instance held that article 33(2) of the AQS creates a direct duty to obtain a separate consent from the sportsman, whereas the appeal court found that such consent is impliedly given the moment the athlete (here football player) joins the national team. The SC agreed with the latter interpretation, stating that by joining the national team the player does indeed agree to a significant limitation on his right to image, whenever the image consists of him in the national representation’s outfit. Other than that he retains full rights to his right to publicity (in particular image). Hence, Żurawski ultimately lost the case.

See also “Polish regulations on copyright” and “Polish case law on copyright“.

Polish regulations on personal data protection

January 11th, 2010, Tomasz Rychlicki

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.

Administrative, civil and criminal proceedings in trade mark cases in Poland

December 22nd, 2009, Tomasz Rychlicki

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 trade mark protection in the Republic of Poland are the following.

I.A. Substantive law

The old Polish Trade Mark Act – TMA – (in Polish: Ustawa o znakach towarowych) of 31 January 1985, Journal of Laws (Dziennik Ustaw) No 5, item 15, with subsequent amendments.
Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments.
Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No 47, item 211, 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
Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments.
Act on Patent Attorneys – APAT – (in Polish: ustawa o rzecznikach patentowych) of 11 April 2001, Journal of Laws (Dziennik Ustaw) No. 49, item 509, with subsequent amendments,

I.C. 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 the Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (CTMR). The CTMR is a part of the Polish Legal system and is directly aplicable by Polish Courts, especially by the Court for the Community Trade Marks and Community Designs (in Polish: Sąd Okręgowy w Warszawie Wydział XXII Sąd Wspólnotowych Znaków Towarowych i Wzorów Przemysłowych).

II. Different routes, different proceedings
The right of protection for a sign being capable to be registered as a trade mark is granted by the Patent Office of the Republic of Poland (PPO). Trade mark holders in the Republic of Poland may protect their rights in civil and criminal proceedings. Moreover, they may also use the procedures before customs authorities.

The Republic of Poland is not a common law country and the courts are not bound by decisions of other courts. However Polish judges tend to widely recognise the decisions and verdicts of the Polish Courts of Appeal and the Polish Supreme Court. Only resolutions of the Supreme Court that are decided as a legal principle are universally binding. The decisions of foreign bodies such as the General Court and Court of Justice of EU may be recognised only as so-called persuasive precedents.

II. A. Administrative proceedings in trade mark cases
The Patent Office of the Republic of Poland is a central government agency responsible inter alia for receiving and examination of applications seeking protection for trade marks and deciding in matters related to granting rights of protection trade marks (decisions with regard to processing of national and International trade mark applications, decisions on the invalidation and the lapse of the right of protection for a trade mark etc.). The provisions of the Code of Administrative Proceedings shall apply accordingly to litigation procedure before the Patent Office in cases not regulated by the IPL. Decisions made or orders issued by the PPO are liable to complaint lodged to the Voivodeship Administrative Court (VAC) in Warsaw. Judgments made by the VAC may be a subject of a cassation complaint filed before the Supreme Administrative Court (SAC).

II. B. Civil proceedings in trade mark cases
Trade mark infringement actions are brought before a District Court. There are no specific courts which have exclusive jurisdiction for resolving trade mark disputes, except the Court for Community Trade Marks and Community Designs which is strictly focused on the legal issues related to CTMs.

The Law on Industrial Property provides that a trademark owner’s rights will be deemed to have been infringed where there has been unlawful use of the mark in the course of trade, including unauthorized use of a trademark by a licensee and sublicensee. The remedies available to the trademark owner are as follows:

cessation of the infringement,
surrender of any unlawfully obtained profits,
compensatory damages in accordance with the relevant principles of the Civil Code or payment of a lump sum equivalent to a licence fee, or any other remuneration, which would have been due if the infringer had been authorized by the right holder to use the trademark. In this case, the trademark owner is obliged to prove that an intentional infringement of its rights has taken place,
announcement to the public of a verdict of the court (upon the request of a trade mark owner) as a whole or in part, or publication of information regarding the verdict,
a court order that the infringer (upon its own request, in case of unintentional infringement) to pay the relevant sum to the benefit of the trade mark owner if the cessation of infringement or forfeiture of the goods held by the infringer (means of manufacturing, materials) would be excessive, and the above-mentioned sum to be paid would fulfil the right holder’s interest.

The following cases, in particular, are also decided in civil law proceedings in accordance with the general principles of law:

for ascertainment of the authorship of an inventive project,
for ascertainment of the right to a patent, a right of protection or a right in registration,
for remuneration for the exploitation of an inventive project,
for remuneration for the exploitation of an invention, a utility model or a topography for state purposes,
for compensation for the transfer to the State Treasury of a right to a patent for a secret invention or to a right of protection for a secret utility model, a right of protection or a right in registration,
for infringement of a patent, a supplementary protection right, a right of protection or a right in registration,
for ascertainment of the right to exploit an invention, a utility model or an industrial design in the cases referred to in Articles 71 and 75 of the IPL,
for ascertainment of the right to use, in a local-scale activity, a mark registered on behalf of a third party as a trademark,
for ascertainment of the right to use a geographical indication,
for ascertainment of the loss of the right to use a geographical indication,
for the transfer of a patent, a right of protection for a utility model or a right in registration of an industrial design or a topography obtained by a person not entitled thereto,
for the transfer of a right of protection for a trad emark in the case referred to in Article 161 of the IPL.

II. C. Criminal proceedings in trade mark cases
The IPL defines counterfeit trademarks as identical trademarks illegally used or trade marks which in the course of trade can not be distinguished from the trade marks registered for the goods covered by the right of protection. The party aggrieved by the infringement has to commence a criminal action. Only after the filing of the motion can the proceedings be started and continued ex officio. The sole exception is when a person committing the crime in respect of a registered trade mark obtains permanent profits from its criminal activity or commits acts resulting in the turnover of counterfeit goods bearing the trade mark, which are of significant value. In such case the infringer is subject to more serious criminal penalties and proceedings will be started ex officio.

II. D. Custom seizures
Customs law, in addition to civil and criminal law, is the third administrative regime of protection for trade mark rights. Provisions of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property are directly aplicable on the territory of the Republic of Poland. The application for action shall be submitted to the Polish Customs Chamber seated at Modlińska 4 Street, 03-216 Warsaw.

II. E. ADR in trade mark cases
Where a domain name including a sign that has been registered as a trade mark by an unauthorized third party, the trade mark holder can use mediation, alternative dispute resolution (ADR) proceedings or civil court action to obtain the cancellation or transfer of such a domain. See also “Polish case law on domain names“.

Polish case law on personal data protection

December 11th, 2009, Tomasz Rychlicki

Below you will find a list of judgments and decisions on personal data protection in the context of IT technologies. You can find a more detailed discussion on each judgment or decision under the link provided with the case file. All judgments and decisions are given in chronological order.

– The judgment of the Supreme Administrative Court of 21 August 2013 case file I OSK 1666/12.

– The judgment of the Voivodeship Administrative Court of 7 October 2011 case file II SA/Wa 364/11.

– The judgment of the Supreme Administrative Court of 19 May 2011 case file I OSK 1086/10.

– The judgment of the Supreme Administrative Court of 19 May 2011 case file I OSK 1079/10.

– The judgment of the Voivodeship Administrative Court in Warsaw of 16 March 2011 case file II SA/Wa 2037/10.

– The judgment of the Voivodeship Administrative Court in Warsaw, of 1 December 2010, case file II SA/Wa 1212/10. This judgment is not yet final.

– The decision of the Inspector General for Personal Data Protection of 13 September 2010 case file DOLiS/DEC-1013/10.

– The order of the Supreme Administrative Court of 15 July 2010 case file I OSK 1079/10. This decison is related to the judgment of the Voivodeship Administrative Court in Warsaw, of 3 February 2010, case file II SA/Wa 1598/09.

– The judgment of the Supreme Administrative Court of 11 May 2010, case file I OSK 963/09.

– The judgment of the Supreme Administrative Court of 15 March 2010 case file I OSK 756/09.

– The judgment of the Voivodeship Administrative Court in Warsaw, of 3 February 2010, case file II SA/Wa 1598/09. This judgment is not yet final. The cassation complaint may be filed to the Supreme Administrative Court.

– The judgment of the Supreme Administrative Court in Warsaw, of 18 November 2009, case file I OSK 667/09.

– The judgment of the Voivodeship Administrative Court in Warsaw of 26 August 2009 case file II SA/Wa 297/09.

– The judgment of the Supreme Administrative Court of 3 July 2009 case file I OSK 633/08.

– The judgment of the Voivodeship Administrative Court in Warsaw of 3 March 2009, case file II SA/Wa 1495/08.

– The judgment of the Supreme Administrative Court of 26 January 2009 case file I OSK 174/08.

– The judgment of the Voivodeship Administrative Court in Warsaw of 30 Novmeber 2007, case file II SA/Wa 71/07.

– The judgment of the Voivodeship Administrative Court in Warsaw of 9 February 2005, case file II SA/Wa 1085/04.