| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
22. Article 46 requires that judges and administrative officials be authorized to order, in certain circumstances, other remedies, including disposal of goods outside commercial channels or destruction of goods and destruction of materials and implements the predominant use of which is the creation of infringing goods. Please describe the additional remedies available under the laws of Poland, the circumstances in which such authority will be exercised, the factors considered in determining the nature of the remedies provided, and cite the legal authorities providing for such remedies
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The laws of Poland do not provide for pronouncing by the court rulings containing the following:
- forfeiture to the benefit of the State Treasury of objects used to create copies of works subject to protection of copyright (Article 80, §§ 3 and 4 of the Act on Copyright and Neighbouring Rights);
- order to confiscate goods, packaging and other objects illegally bearing protected trademark or mark similar to it and means used for advertising and designation of goods with such a trademark (Article 20 of the Law on Trademarks);
- order to eliminate designation of goods with lawlessly used protected trademark (Article 20 § 3 of the Law on Trademarks).
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
23. Article 47 provides that WTO Members may authorize judges and administrative officials to order infringers to identify for right holders third parties involved in the production and distribution of infringing goods or services and their channels of distribution. Please describe any authority judges and administrative officials have under the laws of Poland to order infringers to identify for right holders third parties involved in the production and distribution of infringing goods or services and their channels of distribution and describe the circumstances in which this authority would be exercised. Please cite the legal authorities providing for such remedies.
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In Polish civil procedure it is possible to obtain from a party specific information (e.g. concerning the identity of third parties involved in the production and dissemination of goods and services which have been ruled to infringe the right and information concerning the distribution of these goods) by hearing this party (Article 299 CCP). In the meaning of Article 271 § 1 CCP in connection with Article 304, last sentence, in the course of hearing of the party, the opposing party may ask questions.
Besides, the Act on Copyright and Neighbouring Rights imposes on the judge the obligation to examine the motion on obliging by the court the infringer of copyright to provide information and made available documentation specified by the court which is relevant for the claims. Information relevant for the claims will be information concerning the distribution of copies of works lawlessly created.
These rights enable to exercise the right to information contained in Article 47 of the TRIPS Agreement.
Nevertheless, additionally Article 119 of the Polish Act on Copyright and Neighbouring Rights states that whoever makes impossible or hinders the exercise of the right to supervise the use of a work or artistic performance or denies information provided for in Article 47 should be liable to a fine.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
24. Article 48.2 permits WTO Members to exempt public authorities and officials from liability from remedies only where their actions were taken or intended in good faith in carrying out their responsibilities under the law. Please explain any exemption provided public authorities and officials from liability for abuse of enforcement procedures, describe the circumstances in which such limitations would not apply, and cite the legal authorities granting such exemptions.
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The State Treasury is liable for damages caused by state officials while carrying out their responsibilities - if this damage was the official's fault (Article 417 § 1 of the Civil Code). The official's fault takes place when he transgresses his rights under the legal regulations. However, if such fault is the result of the pronounced ruling judicial or administrative decision) the State Treasury is liable only if while pronouncing the ruling the right was infringed (by the official) in the way subject to prosecution in the mode of criminal or disciplinary proceedings, and the official's fault was stated in the ruling or recognized by a superior authority (Article 418 of the Civil Code). The above prerequisites of liability apply also to the damage which may be caused by lawless use of means of protection of intellectual property rights.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
25. Articles 50.1 and 50.8 require that judicial and administrative authorities have the authority to order prompt and effective provisional remedies to prevent an infringement of any intellectual property right. With respect to each intellectual property right identified in Article 1.2 of the TRIPS Agreement, please identify the provisional measures available to protect intellectual property rights. Please cite the relevant legal authority establishing those provisional remedies.
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The Polish intellectual property laws provide for the use of provisional measures in order to prevent an infringement of intellectual property rights. General regulations are contained in the Code of Civil Procedure.
In order to secure claims the court may issue an interim order (Article 730 CCP). The court issues an interim order on request, and in cases in which proceedings may be instituted without a motion, also ex officio (Article 732 § 1 CCP). In the motion for issuing an interim order one should state and make plausible the circumstances which justify issuing of an interim order (Article 737 § 1 CCP).
The court may issue an interim order when the claim is credible, and the lack of security could deprive the creditor of its satisfaction.
Detailed regulations concerning the establishment of provisional measures in the meaning of the TRIPS Agreement are contained in the following acts concerning intellectual property rights.
- Copyright - the court may secure the claim at the request of the party having a legal interest therein. The applicant must make plausible that failure to secure the claim may deprive the entitled party of its satisfaction. The court may make the issue of the decision to secure claims dependent on placing a suitable deposit (Article 80 § 1, point 3 and § 4).
- The Law on Trademarks in Article 20 § 3 stipulates that in cases involving infringement of rights from registration the court may order to confiscate goods, packaging and other objects bearing a registered trademark or a trademark similar to it and means used for advertising and designation of goods with this trademark.
- Besides, in cases involving protection of geographical designation and non-disclosed information apply the provisions of the act on counteracting unfair competition, concerning the interim order. Article 21 § 1 of this Act provides that an entrepreneur whose interest has been endangered or infringed, may move for issuing an interim order. Under the interim order the court may establish an order of disposal or another introduction to trading of specific goods as well as carrying out advertising of specific contents. The court examines the motion for securing the claim immediately.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
26. Articles 50.1 and 50.8 require that judicial and administrative authorities have the authority to order prompt and effective provisional remedies to preserve relevant evidence in regard to an alleged infringement. Please identify the provisional measures available to preserve relevant evidence in regard to an alleged infringement and cite the relevant legal authority.
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The laws of Poland provide for provisional measures in the form of preservation of evidence, at the motion of the entitled creditor, submitted to the court, and in the course of the proceedings also ex officio.
The motion put forward prior to instituting the proceedings in the case states the reason for the demanded preservation. Preserving of evidence takes place there is a danger that proving of evidence becomes infeasible or too impeded, or for other reasons (to be recognized by the court) there is a need to state the existing state of affairs.
Preservation of evidence may be admitted without calling the opposing party in urgent cases or when the opposing party may not be indicated or its place of residence is not known.
In cases involving protection of copyright or related rights is not necessary to indicate the risk that proving of evidence will become infeasible or too impeded.
The basis for adopting these measurers are the provisions of Articles 310 - 313 CCP and Article 80 § 1, point 1 of the Act on Copyright and Neighbouring Rights.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
27. Articles 50.2 and 50.8 require Members to authorize judicial and administrative authorities to adopt provisional measures inaudita altera parte. With respect to each intellectual property right identified in Article 1.2 of the TRIPS Agreement, please describe briefly the circumstances in which the judicial and administrative authorities are empowered to adopt provisional measures inaudita altera parte and cite the relevant legal authority.
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Provisional measures may be adopted inaudita altera parte with respect to all cases of securing the claim in case of each intellectual property right. It is provided for in Article 738 CCP. However, the ruling concerning security measures must be served to the debtor if it is not subject to execution by the executive body. Otherwise, it is subject to serving only to the creditor, and serving to the debtor is effected by the executive organ after proceeding to adopting the security measures. From this serving to the debtor flows the time allowed for appealing against the decision.
Securing of the claim fails if within the time-limit specified by the court, not longer than two weeks' period, a case involving this claim has not been instituted (Article 733 § 2 CCP).
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
28. Articles 50.2 and 50.8 require that judicial authorities and administrative bodies be authorized to grant provisional remedies when a delay is likely to cause "irreparable harm" to the right holder. Please describe briefly what is required by the authorities identified in answers to questions 25, 26 and 27 to establish "irreparable harm" to the right holder.
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Under the laws of Poland the condition of issuing a decision to secure the claim is the fact of making plausible that the lack of security is likely to deprive the creditor of its satisfaction (Article 730 CCP). This condition is not required while safeguarding copyright and related rights (Article 80 § 1, point 2 of the Act on Copyright and Neighbouring Rights). The laws of Poland go beyond Article 50.2 of the TRIPS Agreement (giving greater possibilities of taking advantage of securing the claim).
Judgement of the circumstances is at the court's discretion.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
29. Articles 50.2 and 50.8 also require that judicial authorities and administrative bodies be authorized to grant provisional remedies when there is a "demonstrable risk of evidence being destroyed". Please describe briefly what factors are considered by the competent authorities in determining when there is a "demonstrable risk of evidence being destroyed".
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The risk that proving the evidence will become infeasible or too impeded, being the condition to preserve the evidence (except in case of evidence of infringement of copyright and related rights) includes also a demonstrable risk of evidence being destroyed. Judgement of this circumstance falls within the court's competence. The court will take into consideration factors connected with the place of existence of the evidence and the person who has the evidence in its control and its interest in preventing from proving the evidence. These factors have not been indicated in the Act but result from courts' practice.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
30. Articles 50.3 and 50.8 require that judicial and administrative authorities be authorized to require an applicant to provide evidence to establish with a sufficient degree of certainty that the applicant is the right holder and that infringement has occurred or is imminent. With respect to each intellectual property right defined in Article 1.2 of the TRIPS Agreement, please describe the evidence required by right holders to establish ownership.
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Evidence as to holding intellectual property right are certified copies of documents confirming the registration of rights subject to registration (right resulting from the registration of a trademark or utility (industrial design), of the right resulting from the patent or registration of topography of integrated circuits.
In case of assigning the right to another person the evidence are copies of documents concerning assignment of the right.
With respect to copyright and related rights the evidence may be each document indicating or making plausible that the applicant is entitled to enjoy the right the protection of which he demands in the form of safeguarding.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
31. Articles 50.3 and 50.8 require that judicial and administrative authorities be authorized to provide a security or equivalent assurance to protect the defendant. With respect to each intellectual property right identified in Article 1.2 of the TRIPS Agreement, please cite the legal authority establishing a security or equivalent assurance.
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The obligation to make a deposit with respect to all intellectual property rights while securing the claim results from Article 739 § 3 CCP and when it concerns copyright and related rights from Article 80 § 2 of the Act on Copyright and Neighbouring Rights.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
32. Article 50.4 requires that parties be notified when provisional measures have been adopted inaudita altera parte. Please describe briefly the procedures followed by each authority able to adopt such measures for notifying affected parties and state the time within which such notice must take place.
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Adoption of provisional measures without hearing the other party (inaudita altera parte) requires serving the court's decision to this party. The mode of proceeding has been discussed in the answer to question 27.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
33. Article 50.4 also requires that defendants be afforded a review process to determine whether provisional measures should be modified, confirmed, or revoked. Please describe briefly the procedures a defendant must follow to initiate review proceedings in each of the authorities able to adopt such measures and identify the period within which such proceedings must be initiated.
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The defendant (debtor) may question, in the form of complaint examined by the court of higher instance, the decision concerning the use of provisional measures. For this purpose, it has to lodge a complaint to the court which pronounced the decision within seven days from the day of being served the decision in this case.
This debtor may at any time submit to the court of the first instance the demand to revoke or change the provisional measure ruled by a lawful decision (Article 742 § 1 CCP). Examination of such a motion must be preceded by a hearing with the presence of the creditor (Article 742 § 2 CCP).
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
34. Article 50.5 requires that competent authorities be authorized to require applicants to supply other information necessary for the identification of goods concerned by the authority that will execute the provisional measures. Please describe briefly what other information may be required by the authorities and cite the legal authority establishing the basis for this supplemental information.
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The body executing the security of the claim may require the parties to the executory proceedings (including also the right holder - the applicant) to furnish necessary explanations. These explanations include also information necessary for the identification of goods subject to provisional measure. The legal basis for such a demand is Article 761 § 1 CCP applying to the performance of provisional measures, in accordance with Article 743 CCP.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
35. Articles 50.6 and 50.8 provide that if proceedings leading to a decision on the merits are not initiated within a reasonable time, provisional remedies granted by competent authorities shall be revoked or otherwise cease to have effect, at the request of the defendant. Please identify the relevant provisions in the law of Poland authorizing the revocation or cessation of provisional measures if review proceedings are not initiated within a reasonable time and specify what constitutes a "reasonable time period" to initiate proceedings.
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The answer to this question is contained in the answer to question 27.
Failure to initiate the proceedings within the time period specified by the court with the use of provisional measure (not longer than two weeks) causes by virtue of law cessation of provisional measures. At the request of the debtor with respect to whom the measure has been applied, the court issues a certificate of cessation of security which leads to releasing of security by the executory body (e.g. revocation of confiscation of goods).
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
36. Articles 50.7 and 50.8 provide that judicial and administrative authorities shall have the authority to order the applicant to provide the defendant appropriate compensation for any injury caused by the adoption of provisional measures when said measures are revoked, have lapsed, or when it has been determined that there has been no infringement or threat of infringement. Please describe how the competent authorities determine "appropriate compensation".
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In such a situation when as a result of adopting a provisional measure the debtor suffered injury, and adoption of this measure was ungrounded and was the plaintiff s fault it is considered that the injury was caused by the plaintiffs fault and may be the basis for instituting a lawsuit for reparation of the injury (compensation). The legal basis constitutes Article 415 of the Civil Code.
The principle of full amount of the injury is used to determine the amount of compensation (Article 361 of the Civil Code), namely:
- real losses including diminishment of the property suffered by the injured party;
- lost benefits which it could have gained if it had not suffered the injury.
This liability covers only standard (i.e. being in a standard causative relation) effects of action or negligence on part of the party causing the injury.
If the court has charged a deposit (Article 739 CCP), the defendant shall have priority to have its claims satisfied from this deposit. While establishing the amount of the deposit the court takes into consideration the amount of any possible damage that may be suffered by a party against whom the security is provided.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
37. Article 51 of the TRIPS Agreement requires that countries adopt procedures that enable right holders to request suspension of the importation of counterfeit trademarked goods and pirated copyrighted works. Please identify the competent authority in Poland authorized to accept applications for a request to suspend release of suspected infringing goods and cite the relevant law or regulation governing such authority.
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Please see the reply to question 1 from Japan.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
38. Please describe the procedures a right holder must follow to obtain border protection by the competent authorities, e.g., if there is a formal application that must be submitted to the competent authority, judicial or administrative, and the information required in the request for suspension and cite the law or regulations providing such procedures.
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Please see the reply to question 1 from Japan.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
39. Please explain whether procedures, permissible under Article 51 of the TRIPS Agreement, are available to stop the export of goods suspected of infringing copyrights and/or trademarks.
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Please see the reply to question 1 from Japan.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
40. Article 52 of the TRIPS Agreement requires that rights holders wishing to stop importation of counterfeit trademarked goods or pirated copyrighted works present evidence to the competent authorities that there is prima facie infringement of their trademark or copyright. Please explain what evidence will constitute prima facie infringement in Poland.
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Please see the reply to question 1 from Japan.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
41. Article 52 also requires that the right holder provide a "sufficiently detailed description of the goods" to be stopped. Please explain what is required of the right holder in Poland for a description to be "sufficiently detailed".
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Please see the reply to question 1 from Japan.
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21/09/1998 |
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