Under the Industrial Property Law, a rights holder may demand that an infringer surrender any benefits obtained unlawfully by way of trademark infringement. In practice, calculating the amount of profits can be challenging. While the amount of profits should be calculated on a case-by-case basis, there are some general principles that should be considered.
In a recent judgment concerning an employment agreement concluded with a pregnant woman, the Supreme Court stated that the actual and real performance of an employment relationship is decisive for determining whether the parties actually concluded an employment contract. Entitling a document 'employment agreement' and having it signed by the parties does not determine its legal status – rather, it is crucial that work is performed on the basis provided for in the employment contract.
The Industrial Property Law does not explicitly mention the possibility of assessing patent infringement under the doctrine of equivalents. However, the doctrine seems to be gaining support among legal commentators and judges. The admissibility of the doctrine of equivalents in Poland has long been the subject of lively discussion, which may soon be concluded with definite answers.
The Supreme Court recently decided that bringing a claim against an employer for the unlawful termination of an employment contract pursuant to Article 45(1) of the Labour Code is not a prerequisite to obtaining an award of damages pursuant to Article 18(3d) of the code. The decision fundamentally changes the risks associated with serving a termination notice and terminating an employment contract and enables employees to make claims long after their employment has been terminated.
Article 79(1)(3)(b) of the Copyright Act allows a rights holder to demand double the amount of damages for an infringement or, if the infringement was culpable, three times the amount of appropriate remuneration. This regulation was partly invalidated by the Constitutional Tribunal in mid-2015, and the European Court of Justice advocate general recently delivered an opinion that this provision may not agree with the EU IP Rights Enforcement Directive (2004/48/EC).
The Supreme Court recently ruled that an employee's breach of the obligation to obey an employer's instructions constitutes a violation of the employer's intangible interests. The court explained that irrespective of the working time system in which an employee is employed, he or she is bound by an employer's instructions concerning work, unless they are against the law.
The Ministry of Finance recently issued a general interpretation of the Personal Income Tax Act 1991 provisions regarding the tax exemption applicable to employee compensation received under voluntary redundancy programmes. The interpretation introduces a new approach to the taxation of voluntary redundancy benefits and will likely lead to the unification of the tax administration's practice in this respect.
The Act on Posting Employees within the Framework of the Provision of Services recently entered into force, guaranteeing an appropriate level of protection for posted employees. In particular, the act determines the terms and conditions of employment, as well as the principles of administrative cooperation between Polish authorities and EU member states. The act also introduces obligations for foreign employers that post employees to Poland.
The commercial use of 'artistically processed' national symbols is allowed in Poland. However, it is recommended that any changes to such symbols are made visible, to comply with the law and that ensure their use is not disrespectful. Further, parties intending to use a national symbol in a commercial way should be aware that obtaining protection for a trademark that includes a reference to a national symbol will likely be impossible.
The Supreme Court recently ruled that an employee was entitled to damages for unlawful termination of employment with notice not exceeding the salary of his statutory notice period, even though it had been contractually extended by the parties. This provision does not apply if the parties to the contract have agreed that an extended notice period be included when calculating damages for unlawful termination.
A judgment was recently delivered on the admissibility of using the SOLIDARITY sign in artistic activity. The figurative sign, which represents the trade union Solidarity, gained international recognition due to the crucial role that Solidarity played in the Polish transition to democracy. The court decided that the unauthorised use of this sign in the music video "I hate you, Poland" did not infringe Solidarity's copyrights or harm its interests and reputation.
In a recent judgment concerning an alleged industrial design infringement, the Supreme Court redefined the principles of protection of industrial designs in Poland. The court deliberately deviated from well-established case law and decided that the courts should not address the question of infringement of a Polish industrial design until the validity has been decided in administrative proceedings.
The recent amendments to the Labour Code made long-expected changes regarding fixed-term employment contracts. The amendments aim to eliminate the abuse of fixed-term contracts by employers. As the interim regulations are still relatively ambiguous, employers should carefully examine each case alongside the provisions of the Labour Code, which may govern the particular situation differently from the newly introduced provisions.
Recent amendments to the Industrial Property Law resulted in the Patent Office moving from a relative examination system to an absolute examination system for trademark applications. The decision to eliminate relative examination is an example of the ongoing harmonisation of EU trademark practice and it is hoped that it will shorten the trademark registration process significantly.
The Supreme Court recently ruled that a management contract rather than employment status is the legal basis for calculating social security contributions for managers who are registered as self-employed and have management contracts with a company in which they are board members. The decision establishes a legal principle under which members of management boards cannot enjoy the favourable social security benefits available to self-employed persons.
Significant amendments to the Industrial Property Law will enter into force in December, bringing important changes to the patent, trademark and industrial design regulations to ensure compliance with European standards. Among the patent regulation amendments are the introduction of a disclosure of inventions grace period, a clear and complete disclosure requirement and changes to biotechnological invention patent claims.
Establishing the boundaries of a trademark's protection is important for rights holders and parties that could be suspected of unlawfully using another party's exclusive rights. A recent Supreme Court case examined the restriction on trademark rights where it is necessary to indicate the intended purpose of a product or service and found that the word trademark was sufficient in this context.
The Constitutional Tribunal recently ruled that Article 2(1) of the Trade Unions Act – which grants the right to establish and join a trade union to employees only and not to other persons performing paid work – was unconstitutional. The judgment does not mean that this section of the act has lost its binding force, but it should result in its immediate modification.
In a recent judgment the Supreme Court ruled that in order to assess whether a subsidiary had breached the principle of equal treatment in employment, the circumstances of its employees could be compared to those of employees of its parent company. The judgment also confirmed the court's position on the difference between unequal treatment and discrimination in employment.
The European Court of Justice recently ruled that the Labour Code provision regarding notice periods applicable to fixed-term employment contracts infringed the requirement to treat fixed-term employees as favourably as permanent employees if their working conditions are comparable. The cabinet recently presented a bill that proposes to eliminate the Labour Code's discriminatory provisions.