Answer ... According to the Industrial Property Law, anyone whose trademark is infringed may demand that the infringer cease the infringement and hand over any benefits unlawfully obtained, irrespective of fault. In the event of culpable infringement, the trademark owner may also redress any damage caused:
- in compliance with general civil law principles amounting to general losses and lost profits; or
- by paying a sum of money corresponding to the licence fee or other relevant remuneration that would have been due and payable to the trademark owner for use of the trademark.
In addition, in infringement proceedings the trademark owner may demand that:
- part or all of the judgment or information on the infringement be communicated to the public in the manner and scope specified by the court; and
- the court adjudicate on products owned by the infringer which have been unlawfully produced or marked, and on the means and materials used to produce or mark them - in particular, that it order their withdrawal from the market or destruction, or that the holder be awarded on account a sum of money in relation thereto.
Answer ... In the Polish legal system, there are no regulations that relate directly to remedies for trademark dilution. However, according to this doctrine, ‘dilution’ of a trademark is understood as the conscious approximation of one’s own trademark with a famous trademark, with the aim of exploiting or weakening the reputation of that trademark, regardless of the type of goods to which it relates. In light of the rules of social coexistence, a trademark application aimed at the dilution of the reputation of a third party’s mark will be refused registration.
Moreover, the use of a designation that is identical or similar to a reputable trademark in the course of trade may be treated as trademark infringement and in some cases also as an act of unfair competition, consisting of the parasitic use of the reputation of a third party’s trademark.
Answer ... The procedure begins with the filing of a statement of claim. Once the statement of claim is served on the defendant, the case becomes pending. The proceedings are conducted with the participation of the parties. The defendant may file a statement of defence prior to the first hearing. According to the adversarial rule, in general the parties are responsible for the submission of evidence. The parties should submit all assertions and evidence necessary to resolve the case at the first hearing, according to the principle of concentration of evidence. In civil proceedings, the principle of oral and written proceedings applies, which means that some procedural activities take place in oral form (eg, the hearing is conducted orally) and some in written form (eg, any appeal). The case is closed once evidence has been taken and the parties have been allowed to make their final speeches. Having closed the case, the court shall render a judgment based on the status quo at the time the case is closed.
Before filing a statement of claim, it is possible to file a motion for an interim injunction in order to secure the applicant’s claims for the period of the main proceedings (eg, demanding the seizure of infringing goods). The court will decide whether to issue a preliminary injunction without hearing the parties.
Answer ... The typical defences are as follows:
- lack of similarity between the parties’ marks;
- lack of similarity between the parties’ goods and services; and
- lack of risk of confusion among consumers.
In the case of alleged infringement of an EU trademark, the defendant may also file:
- a counterclaim seeking invalidation or revocation of the EU trademark with the Polish court; or
- an application for invalidation or revocation of the EU trademark with the EU IP Office, followed by a motion for the suspension of proceedings before the Polish court.
In case of a national trademark infringement claim, an application for invalidation or revocation of the trademark may be submitted to the Polish Patent Office (PPO) only. This type of application is heard by the PPO through adjudication proceedings. Unlike registration proceedings, adjudication proceedings are adversarial in nature.
Answer ... All judgments of the court of first instance may be appealed within two weeks of receipt, accompanied by a statement of reasons for the appeal. The counterparty must file its response to the statement of reasons within two weeks of being served with the appeal. The court of second instance will issue its judgment after a hearing.
An interim injunction ordered by the court of first instance may also be appealed. A complaint may be filed within one week of the relevant decision being served.
A final and non-revisable judgment rendered by the court of second instance may be appealed to the Supreme Court, as an exceptional remedy, within two months of receipt of the decision, accompanied by the statement of reasons for the appeal. In cases involving property rights, an appeal is admissible only where the amount on appeal is more than PLN 50,000. The Supreme Court shall allow an appeal if:
- a material legal question is involved;
- there is a need to interpret legal provisions which cause serious doubt or discrepancies in case law;
- the proceedings were invalid; or
- the appeal is clearly justified.
The Supreme Court shall hear appeals in camera, unless a material legal question is involved and the appellant moves for the appeal to be examined at a hearing. If an appeal is upheld, the Supreme Court in general shall set aside the decision and remand the case to the court which issued it or to another court of equal level.