POLAND
POLAND
THE APPEAL COURT SAID THE DISTRICT COURT WAS WRONG TO CRITICISE THE ARBITRATION COURT FOR NOT EXAMINING THE SIMILARITY OF THE TRADEMARKS AND SERVICES.
the arbitration court. However, in the opinion of the court of appeal, there was no such effect in this case. According to the court of appeal the solutions provided in the Polish law are similar to those in EU legislation, and the infringement of trademark rights is classified by the same rules.
Te court of appeal noted that the district court fully questioned the justification of the verdict of the arbitration court; however, the justification of the district court did not contain the court’s own elaboration of the nature of the contradiction with the fundamental principles of Polish legal order.
Te court of appeal agreed with the arbitration court and its approach, ie, that in the course of trade the subscriber used a trademark identical to a protected mark, not in relation to identical or similar goods, but to goods protected by this trademark. Te defendant is an installer of Bisazza mosaics, but not identical or similar mosaics. Terefore, the appeal court said, the district court was wrong to criticise the arbitration court for not examining the similarity of the trademarks and services.
Te arbitration court committed various irregularities: by qualifying the rights to Bisazza trademarks as national property rights; in examining the infringement based on the reputation of the trademark; by dismissing the infringement claims on the basis of facts that have no meaning in trademark law (eg, sincere intentions, increasing of financial profits, etc); and by failing to examine the identity/similarity of the trademarks and designation included in the domain names and the goods and/or services of each party.
Te court underlined the harmonisation of the laws of member states relating to trademarks with the case law of the Court of Justice of the EU: the latter applies directly in disputes concerning infringements of Community trademarks. Tese rules and regulations must be applied also by national courts, including arbitration courts. Te court underlined that an incorrect choice of legal norms and wrongful interpretation led to Bisazza being unjustly deprived of trademark protection.
The subscriber appealed. The Court of Appeal in Warsaw overturned the judgment of the district court and clarified that the district court was right to say that the arbitration court applied incorrect regulations (national law, not Community law). However, the district court failed to consider whether this irregularity meant a violation of the public order clause. This would have occurred only if that irregularity had a significant influence on the content of the decision rendered by
202 World Intellectual Property Review e-Digest 2012
Worryingly, in the court of appeal’s opinion, arbitration courts are not bound by substantive law in a way that common courts are. This circumstance spells danger for parties, who should be aware of the legal consequences connected with a ‘private’ dispute resolution such as this.
This case revealed that proceedings before arbitration courts are, in fact, one-instance proceedings. Difficulties connected with appealing against a verdict are hard to overcome. And importantly, such disputes are uncommon, meaning there is not enough practice for the appellate courts. It is astonishing that despite so many mistakes and omissions, the verdict of the arbitration court was sustained.
Maria Jurek is a lawyer in the legal department at Patpol. She can be contacted at:
maria.jurek@patpol.com.pl
Maria Jurek has been at Patpol since 2007. She graduated from the Faculty of Law and Administration at Warsaw University, where she is a PhD student. Jurek’s main areas of practice are trademark infringement and unfair competition matters (focusing on prosecution and litigation), domain name disputes and cases relating to customs seizures of counterfeit goods.
www.worldipreview.com
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