Archive for: regulations

Readability test of pharmaceutical products’ leaflet

June 2nd, 2010, Tomasz Rychlicki

In the Regulation of the Minster of Health of 26 April 2010 on the leaflet readability test (in Polish: rozporządzenie w sprawie badania czytelności ulotki), Journal of Laws of 18 May 2010, No. 84, item 551, the Polish Minister of Health provided the principles of examination under which the content of the information attached to the pharmaceutical products is understandable.

The readability test of a pharmaceutical product’s leaflet is carried out by the responsible entity (an entrepreneur who applies for or has received the marketing authorization for a medicinal product), or any other person on its behalf, to ensure that a consumer understands the relevant information contained in this leaflet and will be able to correctly apply the medicinal product. The readability test should be conducted with the following minimum requirements:
– a leaflet should be in the version that will be attached to the packaging of a pharmaceutical product, or its color layout design,
– test participants are those who may use the medicinal product, including those who have difficulty understanding written information.

The test is carried out with ten participants. A positive test result means that for each question, 90% of study participants may find the information on a given leaflet, of which 90% may show their understanding and give the correct answer and to proceed with the medicinal product.

Categories: consumer protection law | pharmaceutical law | Polish Act on Pharmaceutical Law | product packaging | regulations.

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.

Categories: Art. 237 IPL | Art. 240 IPL | Art. 241 IPL | Art. 40 APC | case law | Polish Act on Industrial Property Law | Polish Administrative Proceedings Code | Polish patent attorneys | Polish Supreme Court | regulations | Voivodeship Administrative Court.

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.

Categories: Art. 76a APC | Art. 9 APAT | Polish Act on Patent Attorneys | Polish Administrative Proceedings Code | Polish patent attorneys | Polish Patent Office | regulations.

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).

See also “Administrative, civil and criminal proceedings in trade mark cases in Poland“.

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.

See also:
– “Trade mark law, case II GSK 210/06“.
– “Pharmaceutical trade marks, case VI SA/Wa 844/09“.
– “Pharmaceutical trade marks, case VI SA/Wa 1176/09“.

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.

Categories: advertising law | Directive 2001/83/EC | EU law | Main Pharmaceutical Inspector | pharmaceutical law | pharmaceutical products advertising | Polish Act on Combating Unfair Competition | Polish Act on Industrial Property Law | Polish Act on Pharmaceutical Law | Polish courts | Polish law | Polish Patent Office | regulations | review | trademark law.

Polish regulations on personal data protection

January 11th, 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. The main legal acts on personal data protection in the Republic of Poland are the following.

I.A. Substantive law

  • The Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of October 29, 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of July 6, 2002, No. 101, item 926, with subsequent amendments.
  • The Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.

I.B. Procedural law

  • Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No. 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No. 98, item 1071 with subsequent amendments.
  • Act on proceedings before administrative courts – PBAC – (in Polish:Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No. 153, item 1270, with subsequent amendments.
  • Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, Journal of Laws (Dziennik Ustaw) No. 43, item 296, with subsequent amendments.

I.C. Case law
See “Polish case law on personal data protection“.

I.D. EU law
Since 1 May 2004, which was the accession day to the EU, the Republic of Poland has been bound by all aquis communitaire, including judgments of the Court of Justice of the European Union.

I.E. International law
The Republic of Poland is a party of many International treaties and agreements concerning the protection of personal data.

II. National bodies and procedures
The Inspector General for Personal Data Protection decides cases within its competence under provisions of the Code of Administrative Proceedings, unless provided for otherwise. A party dissatisfied with a decision issued by the GIODO may request for the reconsidering of the case. The decision by the GIODO on the application to reconsider the case may be appealed against with the Voivodeship Administrative Court. The judgment of the VAC may be a subject to a cassation complaint which is decided by the Supreme Administrative Court.

Categories: Inspector General for Personal Data Protection | personal data | Polish Act on Protection of Personal Data | Polish Civil Code | Polish Constitution | Polish courts | Polish law | Polish Supreme Administrative Court | regulations | review | Voivodeship 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“.

Categories: Polish Act on Combating Unfair Competition | Polish Act on Industrial Property Law | Polish Act on Patent Attorneys | Polish Act on Trade marks | Polish Administrative Proceedings Code | Polish Appeallate Court | Polish Civil Code | Polish Court for the Community Trade Marks and Community Designs | Polish courts | Polish Criminal Proceedings Code | Polish District Court | Polish law | Polish Supreme Administrative Court | Polish Supreme Court | regulations | review | trademark law | Voivodeship Administrative Court.

Polish regulations on prohibited contractual provisions

April 8th, 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.

I.A. Substantive law

  • 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.
  • Act of the Protection of Certain Consumer Rights and on the Liability for damage caused by a dangerous product – PCCR – (in Polish: ), published in Journal of Laws (Dziennik Ustaw) of 31 March 2000, No. 22 , item 271.
  • Act on Protection of the Purchasers of the Right to use a building or residential unit for a specified time each year and on amendment to the Civil Code, Code of Minor Offenses,and the Law on Land and Mortgage Registers and Mortgage, published in Journal of Laws (Dziennik Ustaw) of 2000, No. 74, item 855.
  • Act on Specific Terms and Conditions of Consumer Sale and Amendments to the Civil Code.
  • Act of 16 February 2007 on competition and consumer protection, Journal of Laws – CCP – (in Polish: Ustawa o ochronie konkurencji i konsumentów), published in Journal of Laws (Dziennik Ustaw) of 2007, No. 50, item 331.
  • Act of 23 August 2007 on Combating Unfair Commercial Practices – CUCP – (in Polish: ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym), published in Journal of Laws (Dziennik Ustaw) No. 171, item 1206.

I.B. Case law
See “Polish case law on abusive clauses in B2C IT and IP contracts“.

II. Prohibited contractual provisions
Prohibited contractual provisions or “abusive clauses” are understood as provisions of the contract concluded with the consumer that were not agreed individually and in consequence shape consumer’s rights and obligations in a manner contrary to good customs and grossly violate consumer’s interests. Such provisions are not binding on the consumer, but the parties are bound by other provisions of the contract.

In accordance with the provisions of article 3853 of the Civil Code, if in doubt – it is considered that unlawful contractual provisions are those that, in particular:

  • exclude or seriously limit the liability to the consumer for failure to perform or improper performance of an obligation,
  • provide provisions, of which the consumer was unable to get acquaint with before concluding the contract,
  • impose solely on the consumer an obligation to pay a fixed sum in the case of the resignation from the conclusion or performance of the contract,
  • impose on the consumer, who has not performed the obligations or departed from the contract, the obligation to pay grossly inflated penalty or smart money,
  • exclude the jurisdiction of Polish courts or submit the matter to a Polish or foreign arbitration court, or other authority, and impose the adjudication by the court which is not locally relevant according to the Civil Code.

These are couple of examples of the so-called “gray abusive clauses”.

III. Procedure
The District Court in Warsaw, the Court of Competition and Consumer Protection decides if a given provision is prohibited and abusive. Anyone who has been or may be offered a contract containing such a clause, consumer organizations, consumer ombudsmen and the President of the Office of Competition and Consumer Protection may bring an action before the Court. Consumers may obtain assistance from the local consumer ombudsman or one of the state-funded consumer organizations.

The clauses which have been found abusive by a final decision of the Court are entered into the Register of Prohibited Clauses that is available on the website of the President of the Office of Competition and Consumer Protection and as of this moment cannot be used in relations with consumers. The application of such clauses may be regarded as an infringement of collective consumer interests and may result in a fine of up to 10% of the trader’s revenue.

Categories: consumer protection law | contract law | Polish Act on Combating Unfair Commercial Practices | Polish Act on Combating Unfair Competition | Polish Act on Protection of Competition and Consumers | Polish Civil Code | Polish Court of Competition and Consumer Protection | President of the Office of Competition and Consumer Protection | regulations.

Polish regulations on the protection of trade secrets

October 9th, 2008, Tomasz Rychlicki

I. Definitions
There is no definition of “trade secrets” in Polish law. However, there are regulations that allow for very effective protection.

II. 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.

II.A. Unfiar competition
Act on Combating Unfair Competition – CUC – (in Polish: Ustawa o zwalczaniu nieuczciwej konkurencji) of 16 April 1993, Journal of Laws (Dziennik Ustaw) No 47, item 211, with later amendments.

Article 11
An act of unfair competition is the transfer, disclosure or use of third party information, which is company confidential or their receipt from an unauthorised person, if it threatens or violates the interests of the entrepreneur.
2. The provisions of section 1 shall also apply to the person who has been rendering work based on employment contract or another legal relation, for the period of three years from its expiration, unless the contract stipulates otherwise or there is no longer secrecy.
3. The provisions of section 1 shall not apply to the person who, bona fide, by way of a legal operation against payment, acquired the information constituting a business secrecy. The court may oblige the acquirer to the appropriate remuneration for its use, nevertheless for a period not longer than duration of secrecy.
4. Company confidentiality is understood to include the entrepreneur’s technical, technological organisational or other information having commercial value, which is not disclosed to the public to which the entrepreneur has taken the necessary steps to maintain confidentiality.
(…)
Chapter 4
Penal provisions
Article 23.1. Every person, who contrary to her obligation towards the entrepreneur discloses to another person or uses in her own economic activity information which is a business secrecy, shall be liable to the fine, probation or imprisonment up to 2 years, provided it is to the significant detriment of the entrepreneur.
2. The same sanctions shall apply to the person, who having acquired illegally the business secrecy, discloses it to another person or uses in her own economic activity.

It is noteworthy that definition of “company confidentiality” provided in article 11(4) CUC explicitly included “trade secrets” term before amendments in 2002. The CUC protection of “company confidentiality” can be enforced in civil or crminal proceedings. However, regulations afforded in the CUC basically apply only to relations between entrepreneurs (commercial relationships).

II.B. Civil Code
The Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, Journal of Laws (Dziennik Ustaw) No 16, item 93, with later amendments.

Article 72 [1]. § 1. If during the negotiations, a party has provided information as confidential, the other party is required not to disclose and not to transfer of such information to others and not to use such information for its own purposes, unless the parties otherwise agreed.
§ 2 In the event of failure of performance or improper performance of duties as described in § 1, the entitled person may demand from the other party to undo the damages or to return profits received by the other party.

II.C. Criminal Code
The Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Chapter XXXIII. Crimes against protection of information
(…)
Article 267.
§ 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 2. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.
§ 3. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1 or 2 discloses to another person.
§ 4. The prosecution of the offence specified in § 1 – 3 shall occur on a motion of the injured person.

The mentioned above regulations are the basic. There are some other legal acts that govern specific fields of law. For instance the Act on Acountancy, the Code of Commercial Companies, the Code of Labour, the Act on Banks Law etc.

Categories: Art. 267 CRC | Polish Act on Combating Unfair Competition | Polish Civil Code | Polish Criminal Code | Polish law | regulations | review | trade secrets law.

Advertising law, new rules for pharmaceutical products

September 7th, 2008, Tomasz Rychlicki

In the article entitled “Przybędzie zakazów w reklamach leków“, the Polish newspaper Rzeczpospolita reports a recent legislative initiative regarding a draft regulation on advertising of medicinal products prepared by the Polish Ministry of Health. Monitors displaying ads may disappear from pharmacies. Advertising of any medicines will not be allowed in hospitals or pharmacies. The proposed draft especially concerns audio and audiovisual advertising. A similar ban exists in the current Regulation of the Minister of Health of 16 December 2002 on the advertising of medicinal products, Journal of Laws (Dziennik Ustaw) of 2002 No. 230, item 1936, however, it allows for advertising contained in radio and television programmes. There were assembled special monitors to broadcast TV spots in some pharmacies. Such exceptions will no longer be allowed , and the display of medicine advertising spots will become illegal.

The proposal also includes the types of advertising of medicinal products: i.e. advertising which is targeted to the general public or persons who are entitled to issue medical prescriptions or persons engaged in the marketing of medicinal products. The Ministry of Health has stresses that such specification will clearly defined market rules and will have a positive effects on fair competition.

Advertising in visual form must contain a warning.

Before use, read the label, which includes indications, contra-indications, data on side effects, dosage and information about the medicinal use of the product, or consult your doctor or pharmacist.

The warning has to be included in any part of advertising, on a flat surface which is not less than 10 percent of total surface area of the ad. The text must be distinguished from the background and it be legible. A warning in an audiovisual advertising has to be placed in the lower parts of the plane, which is not less than 20 percent of the total surface area. It must also be clearly legible in the Polish language and appear on the screen for not less than 5 seconds.

Categories: advertising law | pharmaceutical products advertising | Polish Act on Pharmaceutical Law | Polish law | regulations | review.

Polish regulations on copyright

April 18th, 2005, Tomasz Rychlicki

I. Introduction
To begin with, I have to write about the less or more important translation problem. The main Polish “copyright” act is the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No. 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No. 90, item 631, with subsequent amendments. As you can see there is no “copyright” in the title of this act. Due to the fact that the Polish law originates from the Civil law and Roman law, it shares the concept of authors rights being intangible personal/moral and economic rights owned, in general, by the creator of a protected work (the author or co-authors – the holder). This is the concept of the so-called dualism of author’s rights, which originates from the French doctrine of author’s rights that was first introduced and developed by M. Henri Desbois. However, I am going to use the word “copyright” to describe all economic rights attributed to the author or the owner of a protected work (the holder). These economic rights include inter alia the right to copy a work, distribute, etc.

II. The law
– The Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No. 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No. 90, item 631, with subsequent amendments.

III. The subject matter of copyright
According to the provisions of Article 1 of the ARNR The subject matter of copyright is any expression of creative activity having individual character and manifested in any material form, regardless of the value, intended purpose and manner of expression thereof (the work). The case law and the Polish legal doctrine share the view that the immaterial work, under the copyright law should demonstrate all of the following characteristics:
– it must be the result of the activity of man, i.e. the creator of the work, where a manifestation of activity means every manifested result of action,
– it must be a manifestation of creative activity,
– it must have an individual character.
See J. Barta, “Ustawa o prawie autorskim i prawach pokrewnych. Komentarz“, Dom Wydawniczy ABC, Warszawa 2001, p. 68.

To be continued…

See also “Polish case law on copyright“.

Categories: copyright law | Polish Act on Authors Rights and Neighbouring Rights | Polish law | regulations.

Polish regulations on industrial designs

March 17th, 2005, 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 industrial designs protection in the Republic of Poland are the following.

I.A. Substantive law

  • 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.
  • Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), published in Journal of Laws (Dziennik Ustaw) No 47, item 211, with subsequent amendments.

I.B. Procedural law

  • 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.
  • Act of 30 August 2002 on Proceedings Before Administrative Courts – PBAC – (in Polish:Prawo o postępowaniu przed sądami administracyjnymi), published in Journal of Laws (Dziennik Ustaw) No 153, item 1270, with subsequent amendments.
  • Civil Proceedings Code – CPC (in Polish: Kodeks Postępowania Cywilnego) of 17 November 1964, published in Journal of Laws (Dziennik Ustaw) No 43, item 296, with subsequent amendments.
  • Act of 11 April 2001 on Patent Attorneys – APAT – (in Polish: ustawa o rzecznikach patentowych), published in Journal of Laws (Dziennik Ustaw) No. 49, item 509, with subsequent amendments.

I.C. Case law
See “Polish case law on industrial designs“.

II. Definition of an industrial design
A product that is new and has individual character, appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of a product or of its ornamentation may constitute an industrial design. As “product” is considered, in this context, any industrial or handicraft object, among others including packaging, get-up, graphic symbols and typographic characters, but excluding computer programs. Also considered as “product” are furthermore: (i) a product composed of multiple components which can be replaced allowing disassembly and re-assembly of the product (“complex product”); (ii) a part of a complex product if, once it has been incorporated into the complex product, it remains visible during normal use of that product (whereby maintenance, servicing or repair work are not considered “normal use”); and (iii) a part of a component product as such if it may by itself be subject of commercialization. Design protection cannot be obtained for: (i) features of a product which are exclusively dictated by the technical function of the product concerned; and (ii) features of a product which must necessarily be reproduced in their exact form and dimensions in order to allow the product in which the design is incorporated or to which it is applied to be mechanically connected to or to interact with another product. However, an industrial design which serves the purpose of allowing the multiple assembly or connection of mutually interchangeable products within a modular system may be protected. Design protection cannot be obtained for products constituting a component part of another complex product, usable for repair of that complex product in a way enabling recovery of its original appearance. Third parties may use the said component part in the meaning of its production, offering, introducing to the market, import, export or the use of a product comprising the said component part.

III. Applicant
The creator of the design or any assignee of the same. Foreigners may apply for and obtain registration to the same extent as nationals of Poland provided that reciprocity exists. Applicants residing abroad must be represented by an admitted patent attorney permanently residing in Poland.

IV. Procedure for Registration
Applications for the registration of a design are examined as to compliance with the formal requirements, and as to whether the design belongs to any of the categories mentioned above under “Not registrable. There is no examination as to novelty. If no objections are found a decision on grant of registration will be made, and applicant will be invited to pay within three months the fee for the first protection period of five years from grant and the publication fee; if the fees are not timely paid the decision on the grant will be revoked. After registration particulars thereof are published in the Patent Office Journal. The registration will be recorded in the Industrial Designs Register. A certificate of registration, of which the design specification, that is, the description of the design and the drawing(s) and (where applicable) the photographs or the textile samples form an integral part, will be issued. During the period until registration the Office will give information on the application only with the consent of applicant. During the procedure amendments that would alter the design and the forms of the design as presented in the description, drawings and photographs are not allowed; however, if the claimed form of a product is modified a corresponding amendment might be acceptable if the identity of the product is retained and the amendment is necessary for the grant of the registration.

IV.1. Requirements for Registration
An application may comprise up to ten forms of a design for which the essential features are common, except if the various forms together constitute a complete set of products, in which case the limitation to ten forms does not apply. All the forms of the industrial design contained in one application shall be presented in a form of figures on one of the illustrations (drawings or photographs);

The required documents are:
– request, comprising the full name and domicile of the applicant(s) and full names of the creator(s), and an indication of the article to which the design is to be applied; if applicable, comprising claim to priority,
– Power of attorney, not legalized,
– description of the main features of the design, in Polish language, in triplicate. (Claims and an abstract are not required for an industrial design application),
– Drawings, three sets, sizes of A4. An industrial design application shall contain illustrations, in particular drawings or photographs. An industrial design application may also contain samples of a textile fabric. The drawings must be made on sheets of white, flexible paper in solid lines, and must be made in such manner that all details can still be clearly distinguished after reduction in size to one third. At any rate a drawing or photographs presenting a perspective view must be filed. Additionally, drawings may be filed of other views, and also photographs of min. size 5 cm X 5 cm, max. size 13 cm X 18 cm (coloured photographs allowed). In the case of an application relating to more than one form of the design all of them should be presented on common illustration in perspective view, and additional illustrations may be filed for each form;
Priority claim priority must be claimed on filing, giving date, country and number of the application whose priority is claimed. A priority document, i.e. a certified copy of the application whose priority is claimed, must be filed (may be filed within three months from the filing date). If the priority document is not in English, French, German or Russian, a certified translation thereof must accompany the document.

IV.2. Registrable designs
Two dimensional, three dimensional, single deposits, multiple deposits.

IV.3. Not registrable designs
– Designs not complying with the definition of a design;
– Designs lacking the required novelty or individual character;
– Designs, the exploitation of which would be contrary to public order or morality, provided that exploitation of a design shall not be deemed to be contrary to public order only because it is prohibited by law;
– Designs including the name or abbreviated name of the Republic of Poland or its symbols, the names or armorial bearings of Polish voivodships, towns or communities, the insignia of the armed forces, paramilitary organizations or police forces, reproductions of Polish decorations, honorary distinctions or medals, military medals or insignia, or other official or generally used distinctions and medals, in particular those of the government administration, local self-administration or social organizations performing activities in vital public interests, if the activities of these organizations extend to the entire territory or a substantial part of the territory of the State, unless applicant can furnish evidence (such as an authorization from a competent State agency or a permission given by an organization) of his right to use the sign concerned in the course of trade;
– Designs incorporating the abbreviated names, armorial bearings, flags or emblems of other countries or international organizations, or official signs or hallmarks indicating control and warranty adopted in other countries, if the prohibition to register these follows from international agreements, except if applicant can produce an authorization from a competent authority allowing him to use the sign concerned in the course of trade.
– Designs incorporating officially recognized signs accepted for use in trade, such as safety marks, quality marks, hallmarks etc., in so far this could mislead the public with regard to the nature of those signs, unless applicant can prove his right to use these.
– Designs incorporating elements which are symbols of a religious, patriotic or cultural nature, in so far as this could hurt religious feelings, sense of patriotism or national tradition.

IV.3. The novelty requirement
An industrial design must be new and have an individual character. A design will be considered to be new if, before the date of filing the application for its registration or, if priority is claimed, before the priority date, no identical design has been made available to the public anywhere in the world by use, exhibition or any other means. In this context it must be noted that designs are still considered identical if their characteristics differ only in immaterial details. A design will not be deemed made available to the public if before the filing or priority date it could not have become known to the circles specialized in the sector to which the design belongs.

A design will be considered to have individual character if the overall visual impression that it produces on the informed user differs from that produced by any design made available to the public before the date of filing the application for registration or, if priority is claimed, before the priority date. For the assessment of the individual character, the degree of freedom of the creator in developing the design is to be taken into consideration.

The novelty and individual character of a design incorporated in or applied to a product which is a component part of a complex product will only be assessed in consideration of its visible features. (As “complex product” is considered, a product composed of multiple components which can be replaced allowing disassembly and re-assembly of the product).

Not a bar to novelty are (i) disclosure of the design to a third party under explicit or implicit conditions of confidentiality;(ii) disclosure of the design during the 12 months preceding the filing date or, if priority is claimed, during the 12 months preceding the priority date by the creator or his successor in title, or by a third party with the consent of the creator or his successor in title; (iii) disclosure of the design during the 12 months preceding the filing date or, if priority is claimed, during the 12 months preceding the priority date as a consequence of an abuse in relation to the creator or his successor in title.

IV.4. Publication
Industrial design are kept secret prior to registration. Description of a registered design is available to the public in the Polish Patent Office.

V. Copyright Protection
A product according to a registered industrial design and put on the market after the lapse of the registration of the design shall not benefit from the the material copyrights under the provisions of the Polish Act of 4 February 1994 on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych), published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with subsequent amendments.

VI. Duration of the rights in registration for industrial designs
25 years from the date of filing of the application, which period is divided into five five-year periods.

Categories: industrial designs | Polish Act on Industrial Property Law | Polish law | regulations.