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In today’s Rzeczpospolita, Dr. Michal Markiewicz writes about trademarks. Similar to other industrial property rights protecting, for example, inventions or industrial designs, is there a right of protection for a trademark? When can a competitor’s unfair registration of a mark identical to ours be blocked, and what is the relationship with agents who want to “seize the right” to a mark, does this regulation also apply to entities other than agents, such as distributors or licensees? So, relatively briefly, for a complex topic, I write about how to defend against a third party’s registration of our unregistered trademark in the territory. Publicly available excerpt from the article: https://archiwum.rp.pl/artykul/1505830-Znak-towarowy-rejestruje-konkurent-lub-nielojalny-dystrybutor—jak-sie-bronic-.html?fbclid=IwAR20fcnMXiMplEW10g8L5dK7aV-H9706eZ6fEDzVDWTZ4g-EhygCRU0DP2k

In today’s Rzeczpospolita, I addressed the topic of protecting the appearance of a product, pointing out firstly the principle of permissibility of imitation, but secondly trying to determine to what extent it is limited in many areas of intellectual property law. Thus, I write about what slavish imitation is in the Unfair Competition Law and to what extent the external appearance of a product (design) can be protected by copyright, industrial designs and trademarks. 👉 The topic of cumulative protection by intellectual property rights is fascinating, it shows how many conflicts between the interests of different market players have not yet been precisely resolved – but it is worth being aware of the existing dangers or opportunities. Link to article for Subscribers:https://www.rp.pl/biznes/art39361911-wyglad-produktu-czy-dozwolone-jest-kopiowanie-jak-chroniony-jest-design?fbclid=IwAR0L_UwQzWmIhVTL5cveteaPm7bgU9lUZlC4k9698yb6w0Cv2QMXa9tjGBE

In today’s Rzeczpospolita, Dr. Michal Markiewicz writes about the durability of a license agreement in copyright law. This is because not everyone realizes that if you do not specify the duration of the license, it will expire after 5 years. An even bigger surprise is related to contracts for a fixed term longer than 5 years. The possibility to terminate them already after 5 years was in principle supposed to protect the creator, but in reality it leads to the opposite effect and the forcing of agreements transferring rights, even though it does not correspond to the interests of the creator, but also to the expectations of the other party to the contract. 👉 So how to deal with license agreements that must be concluded for a long time? ➡️ Publicly available excerpt from the article: https://archiwum.rp.pl/artykul/1504331-Wypowiadalnosc-umowy-licencyjnej:-ochrona-tworcy-czy-wrecz-przeciwnie.html?fbclid=IwAR2EmJlMCdeZdrjFRivRa7QxEVG6fdOiH0XCU-MHV01IoGQJZnY3vL9N1dg

In today’s Rzeczpospolita, Dr. Michal Markiewicz writes about the institution of exhaustion of rights. When we acquire a good protected by intellectual property rights, can we sell it further? It would seem that since it is our property then, of course, yes. However, the answer, as usual in law, is “it depends.” As a rule, intellectual property rights also include control over the further resale of acquired items. The exception in this regard, which is extremely important, is precisely the exhaustion of the right to control the resale – however, this does not always occur, and the mechanism itself is an important tool from the perspective of shaping price policy and the competitiveness of individual markets. In the article I present the basic assumptions of the construction of the exhaustion of the right and the consequences it brings. Publicly available excerpt from the article: https://archiwum.rp.pl/artykul/1503521-Wlasnosc-rzeczy-to-jednak-nie-wszystko.html

We are pleased to announce that yesterday there was a favorable verdict for our client in a payment case involving a factoring agreement against a bank as a factor. The case involved fully insured factoring, which, in addition to financing receivables, involves the factor assuming the risk of non-payment for the transaction in cooperation with the factor’s insurer. The client submitted a French counterparty for factoring, claiming to be responsible for supplying goods to a French grocery chain. The client had not worked with this counterparty before and wanted to use the professional services of a factor who claimed to specialize in verifying counterparties and ensuring the security of transactions. The transactions were approved by the factor, and the goods were shipped to France. It was only after the fact that the client discovered that he had been the victim of a distribution scam and had shipped the goods to an entity that merely impersonated a supplier to a French chain store and never received payment for the goods. The client believed that the factor was liable for the loss of the client’s failure to receive payment for the goods because the client relied on the factor to verify the security of the transaction – if the factor had not approved the transaction, the client would not have chosen to ship the goods to France. The factor evaded liability in its entirety, pointing out that assumption of risk does not apply in cases of fraud, and maintained that the factoring agreement did not obligate the factor to conduct a detailed verification of the counterparty, and that the factoring agreement does not relieve the client of the obligation to verify counterparties on its own. In the course of the proceedings, we demonstrated what the purpose and essence of the insured’s full factoring was, and that it was the factor’s primary burden to verify the credibility of the counterparty before including the receivables in the factoring, and pointed out the steps that the factor should have taken for this purpose, which it failed to do. The court agreed with our arguments and took the position that a proper interpretation of the contract, taking into account the purpose and essence of the insured’s full factoring and the circumstances of its conclusion, justified the acceptance of the factor’s liability for the resulting loss at 50%. The court ruled that the customer (as a businessman) and the factor are half responsible for the damage to the customer in the form of non-payment for the goods. The case was handled by attorney Monika Mierzejewska of our law firm. The case was conducted by the District Court in Warsaw, XXVI Commercial Department under case number XXVI GC 971/22. The judgment is not final.

There are heavy administrative fines for payment backlogss. 🔹 As of the beginning of 2023, new regulations on penalties for excessive delays in commercial transactions are in force. Currently, the President of the Office of Competition and Consumer Protection no longer has the authority to waive the imposition of a fine in a situation where the sum of receivables not paid or paid late during the period under investigation is higher than the sum of liabilities not paid or paid late during that period. The above change negatively affects the situation of many entrepreneurs who, in the previous state of the law, often “saved themselves” with this premise and thus avoided high administrative penalties. 🔹 According to the law, excessive delay in the fulfillment of pecuniary benefits occurs when, over a period of 3 consecutive months, the sum of the value of due pecuniary benefits unfulfilled and fulfilled after the deadline by this entity amounts to at least PLN 2,000,000. Taking into account the fact that to the above “pool” of benefits are taken into account all benefits delayed (even by 1 day), it is not difficult for many entrepreneurs to meet the above premise, and consequently expose themselves to the risk of proceedings before the OCCP. 🔹 The amended law also introduced the institution of a “soft speech” (along the lines of antitrust and consumer proceedings) to the so-called congestion proceedings, with which the OCCP President may address the entrepreneur pointing out irregularities and expecting improvement in this regard, without simultaneously initiating administrative proceedings. The above will perhaps reduce the number of initiated proceedings that could end in a fine. 👉 At Markiewicz Sroczynski Mioduszewski we help entrepreneurs in obstruction proceedings, so we are curious to see the further development of the jurisprudential practice of the President of the OCCP in this regard.

This time in Rzeczpospolita, Dr. Michal Markiewicz writes about music, more specifically, song and its special protection. Why is it special? Well, it is an example of an intellectual good that is protected by at least several independent rights that may arise in favor of different entities. Legal exploitation of a song, as a rule, requires obtaining consent against each of the rights that arise (except, of course, for the exceptions provided for in fair use provisions, such as the right of quotation). In addition to pointing out the rights that arise, the text describes, among other things, what mechanisms are in place to facilitate the conclusion of the relevant agreements and how to “circumvent” the protection provided by related rights. Publicly available excerpt from the article: https://archiwum.rp.pl/artykul/1502661-Prawa-autorskie-to-nie-wszystko-Co-chronimy-w-muzyce.html