Third-party use of a trademark in a prize draw: Permissible use or infringement?
Can a renowned trademark be used to encourage participation in a contest? Is displaying someone else’s trademark as a promotional prize merely informational, or is it trademark infringement? The Court of Justice addressed this issue in its judgment of 11 January 2024 in C-361/22, Inditex. The case involved a promotional campaign in the form of a contest, where the prize was a gift card from a well-known fashion brand. The promoter used the brand’s logo in a depiction of the card without the proprietor’s permission.
Price reductions under CJEU scrutiny: What does the new judgment change for consumers and retailers?
On 26 September 2024, the Court of Justice issued a major ruling on consumer protection in the context of presentation of product prices and use of discounts in advertising campaigns. The judgment in C-330/23, Aldi Süd, will be crucial for businesses operating in the EU, including Poland.
Trade secrets: Partial declassification
The issue of trade secrets in Polish public procurement continues to generate doubts and objections. Recent actions by contracting authorities and rulings by the National Appeal Chamber show that less and less information can be classified as trade secrets. The chamber closely examines whether contractors have met all the prerequisites for treatment of classified information as a protected trade secret.
Sanctions: Commission Guidance does not give full certainty
Court of Justice clarifies the notion of “legal advisory services” under EU sanctions law and throws into doubt the Commission’s interpretation.
Who has standing to sue in the case of a consortium, and does completion of contract performance preclude a claim for modification under Art. 357(1) of the Civil Code?
In the judgment of 24 July 2024 (case no. II CSKP 968/22), the Supreme Court of Poland ruled on doubts regarding legal standing to assert a demand for either contract modification or payment under Art. 3571 of the Civil Code in the event of an extraordinary change of circumstances (the rebus sic stantibus clause), on the part of a consortium of entities executing a public contract for a contracting authority. The court also commented on whether a claim under Art. 3571 can be made after the contract has been fully performed. This ruling is very important for contractual practice in Poland.
Tales from the National Appeal Chamber: Requiring additional evidence is an unreasonable barrier to fee indexation
The last two years in the public procurement market have been stormy. The Covid-19 pandemic and the war in Ukraine have caused a steady and dynamic increase in the prices of materials and services, and disrupted supply chains, translating into record inflation rates and unprecedented fee increases. With this tough economic situation directly affecting the market, contractors have faced the difficult task of indexing their fees in public contracts. The National Appeal Chamber, which hears challenges in public procurement matters in Poland, gave essential guidance on this issue in its ruling of 28 November 2023 (case no. KIO 3389/23).
Tales from the National Appeal Chamber: Amounts for basic and optional procurement should be clearly defined
Sometimes, before opening the bids, the contracting authority already knows the amount it will allocate for both the basic contract and the optional contract. How should it indicate these amounts for finalising the procedure? When can the procedure be cancelled under Art. 255(3) of the Public Procurement Law if the contract provides for the right of an option? In a recent ruling, the National Appeal Chamber answered these and other questions.
How does access to public information work in Poland?
Disputes over access to public information are increasingly finding their way onto the court docket in Poland. Higher public awareness and a desire for citizen oversight of issues of particular public interest may be the reason. But administrative authorities or other entities obliged to provide information, whose decisions are subject to further review, often refuse to provide the requested information. What is public information, how to obtain it, and what to do when access is denied?
Tales from the National Appeal Chamber: Trade secrets must be proven
Public procurement is subject to the general principle of openness. Sometimes, this conflicts with the interests of contractors, who can protect their companies’ valuable information and knowhow by designating it as a trade secret. But this is not an automatic process, as it requires contractors to make a credible showing of the rationale for protecting the information. In a recent ruling, the National Appeal Chamber clarified the conditions for correctly reserving trade secrets.
Can penalties in public procurement exceed the contract price?
The Polish Public Procurement Law does not specify an upper limit for contractual penalties. However, if the penalties are out of line with the realities of the contract, the contractor can seek review by the National Appeal Chamber. In a recent ruling, the chamber cut the penalties to 30% of the contractor’s gross fee.
Judicial revolution allows online alcohol sales
The judgment of the Supreme Administrative Court of 8 September 2022 has broken a relatively uniform line of decisions banning online alcohol sales.
Disqualification of a judge in a case over a mortgage denominated in Swiss francs is not as obvious as it seems
Can a judge impartially rule in the case of a bank from which the judge has taken out a mortgage loan? Is the mere fact of holding a mortgage in Swiss francs a basis for disqualifying a judge from hearing cases seeking invalidation of mortgage loans indexed or denominated in that currency? And why is it easier to disqualify a Supreme Court judge than a lower-court judge?
