🇵🇱 Poland

12    POLAND

12.1    LEGAL FRAMEWORK

Pursuant to the general rule, both substantive and procedural law have to be consistent with European legislation, and therefore are subject to harmonization within European Union. Although this process is advanced, the procedural law is slightly influenced by European law. As a result, Polish judicial procedure is governed mainly by the national legislation.

12.2    MAIN PRINCIPLES

  1. In Poland the court system is divided into two sections, comprising of common courts and administrative courts. Depending on the case in issue, proceedings concerning IP matters can take place in both types of courts. Administrative courts handle cases concerning the appeals against the Polish Patent Office (the) PTO decisions, granting rights such as trademarks or patents from the point of view of their validity, whereas the question of the infringement of the exclusive IP rights fall within the jurisdiction of common courts. For the purpose of this publication, we will focus on the procedure before common courts.
  2. Civil common courts operate under the regulations of the Code of Civil Procedure. Taking into consideration stages of the proceedings, we can name three types of common courts: District Court (Sąd Rejonowy), Regional Court (Sąd Okręgowy) and Court of Appeals (Sąd Apelacyjny). In general, plaintiff is entitled to two instances of case revision. Depending on the matter, the two instance path may start in the District Court as first instance and Regional Court as second instance, or Regional Court and Court of Appeals respectively. Rules upon which each case is attributed to the materially competent court are established exclusively by the legislator. If certain requirements are fulfilled, after two instance proceedings the party can also present the case to the Supreme Court (Sąd Najwyższy), which, even though is not formally treated as the third instance, can change the overall outcome due to purely legal (not factual) reasons.
  3. IP litigations, due to their complexity and general business significance, are handled by Regional Courts in the first instance and can be revised in the Court of Appeals.
  4. First instance cases are judged by one judge. However, if the case is particularly complicated, the President of the Court may appoint larger representation, namely three judges. In practice, it does not happen. In the second instance, case is always ruled by three judges.
  5. The plaintiff should present his case before a court having its jurisdiction over the seat of the defendant. However in the “tortious type” cases plaintiff can also file a claim before a court competent for the venue where the infringement occurred. This rule may be particularly difficult to apply due to modern technologies blocking the possibility to determine the exactly location of infringement, in particular if plaintiff’s rights were threatened via the Internet. In order to ensure greater protection of injured parties, in all cases for tort, plaintiffs are deemed to have the right to file a case at any court convenient.

In Poland, the Court of Community Trademarks and Community Designs in Warsaw was granted with the special authority for handling the IP infringements. This resolution is highly beneficial, as it provides plaintiff and defendant with well-qualified judges experienced not only in procedure and general law, but in particular in the field of intellectual property.

  1. In the IP litigations a client can be represented by an advocate, by a legal counsel or by a patent attorney, there is no additional requirement to obtain professional qualifications specifically for IP matters.
  2. The duration of the trial depends on many factors, such as scope of brief of evidence and appearance of the parties when such appearance is compulsory. Therefore, even the approximate duration of the proceedings is difficult to foresee and estimate.

12.3    IMPORTANT MILESTONES OF A TRIAL

12.3.1    First instance procedure

The first instance proceedings are initiated by filing a statement of claim. Before entering into dispute, the statement of claim is subject to the formal examination by the court. Judge verifies whether all the formal requirements, including court fee payment, are fulfilled. If the statement of claim is correct in terms of formalities, it is served to the defendant, who is granted the right to file a response within certain deadline set forth by the judge. Both parties are obliged to provide the court with full evidence of which they are aware at this stage. This rule is quite vital, as it is possible that documents and any other evidence provided to the court after entering into dispute may be considered delayed and therefore not admissible.

Upon exchange of the statements of the parties, the judge sets the date of the hearing. During the hearing parties are allowed to present their statements and judge examines the evidence. If any of witnesses are summoned to the hearing, they are publicly interrogated. Usually in cases where witnesses or experts appointed by the parties or the court are being examined, there are several hearings before the verdict is announced by the judge.

From the practical point of view, as IP litigations are mostly complicated and usually followed by massive brief of evidence, the verdict is rarely rendered after one hearing.

If none of the parties files an appeal, the judgment is legally valid after 21 days from its rendition and announcement.

12.3.2    Judgment and further appeals

After the rendition of a judgment, the party unsatisfied with the outcome may challenge the verdict before the Court of Appeals. The party should file a motion for written justification of the verdict, which is possible within seven days from its announcement.  The appeal may only be filed within two weeks from the delivery of the verdict with written justification, and this term cannot be extended.

The appeal is filed to the court which issued a verdict, which examines the appeal from the formal point of view, and if there are no formal obstacles, the court passes the appeal together with the files to the Court of Appeals.

Then, the Court of Appeals examines the case once more, but only to the extent indicated in the appeal. That is why it is extremely important to precisely point out the charges against the challenged verdict, as any charges other than indicated would not be revised.

The Court of Appeals may sustain the previous verdict, change it or decide on its invalidation and transfer the case back to the Regional Court for reconsideration.

12.3.3    Revision

The Appeal Court’s decision is final, however the party unsatisfied with the Appeal Court verdict can still try to challenge it before the Supreme Court. However, there are additional prerequisites that have to be satisfied. The party is authorized to this extraordinary complaint if the value of the object of litigation is at least equal to 50.000 PLN.

The procedure is quite similar to filing the appeal. The extraordinary complaint has to be filed within two months from the delivery of the verdict with written justification. The formal examination belongs to the Court of Appeals, which – if the complaint is correct – transfers it to the Supreme Court with appropriate files.

It has to be clearly stated though that the Supreme Court is not a third instance court. The Supreme Court does not consider facts and will focus purely on legal aspects. Even if all formal requirements are satisfied, the court may still not take the case into consideration, it depends on further circumstances, such as the importance of the matter or the obvious incorrectness of the challenged judgment of the Court of the Appeal.

12.4    THE PRELIMINARY RULING BEFORE THE EU COURT OF JUSTICE

Pursuant to European regulations, every judge deciding on the case can file a question to the European Court of Justice if answer is considered vital for the outcome of the conducted proceedings. In such case, the litigation remains pending, but stayed until the European Court of Justice resolves the presented matter and answers the question.

12.5    COSTS AND FEES

The obligation to reimburse the costs of the trial and statutory legal fees suffered by the other party lies on the party that loses the trial. When it comes to IP cases, those costs might be considerably high.

12.6    PRELIMINARY INJUNCTION PROCEEDINGS

Each party, especially the injured party whose rights have been infringed can file a motion for interim protection. This action can be taken before or during the trial. Court would grant protection if the party substantiates both: its claim and its legal interest in being granted the protection. The aforementioned legal interest occurs when lack of protection makes it impossible or seriously difficult to execute the future verdict or to acquire the purpose of the proceedings.

The Court may protect the claim in any way that is appropriate and essential. With regard to the IP matters, courts usually order the defendant to cease and desist from the actions considered infringement for the time of the proceedings. This is a powerful tool in the hands of the plaintiff, however on the other hand, if the final verdict issued in this case proves the plaintiff wrong, the plaintiff will be fully responsible for the damages resulting from the preliminary injunction granted on its request.

12.7    CRIMINAL PROCEEDINGS

Criminal proceedings are subject to different rules and regulations than the aforementioned civil procedure. Mainly, criminal procedure is governed by the Code of Criminal Procedure and conducted by public authorities acting ex officio.

Pursuant to Polish regulations, entering to the market goods with counterfeited registered trademarks or imitating exclusive industrial designs is an offence prosecuted upon the motion from the authorized party. This means that the initiative to start the proceedings belongs to the entity which suffered due to this offence. However, if the motion for prosecution is filed with the appropriate Prosecutor’s Office, public authorities conduct the investigation on their own.

Criminal proceedings concerning IP protection are increasingly popular nowadays, mainly due to the opportunity to gain the information on the source of the initial infringer.

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