| In Principle

The concept for a new public procurement law suggests changes to ensure greater effectiveness of appeal proceedings and make right of appeal realistic. There will be a specialist court to review the cheaper appeal.

According to figures from KPMG, the alcoholic beverages market in Poland was worth about PLN 57 billion in 2016, and its value is growing year on year. The industry is of great economic importance, providing numerous jobs and offering a major sales outlet for agricultural production. The selection of the topic for today’s edition is no accident. We believe that developments on the market may cause certain models for protection of intellectual property to grow in importance—alongside growing threats to those rights. We discuss them here from the practical side.

Producers of alcoholic beverages struggle with highly restrictive regulations across many areas of their business. One is advertising. The Polish regulations, in the Act on Sober Upbringing and Combating Alcoholism of 26 October 1982, are quite rigorous compared to most other countries. Essentially it is illegal to advertise alcoholic beverages, but with some leniency for beer. Beer advertising is permitted, subject to great restrictions on manner, place, time, form and content.

The fame or renown of a trademark is not a concept defined in Polish or EU law. The courts try to clarify this notion by pointing to the criteria that must be met for a mark to be regarded as renowned. Although these criteria are already well-established in the EU case law, the Polish courts sometimes add new requirements.

Trademark proprietors try to promote their brands so they become known and recognisable among customers, achieving greater distinctiveness and even repute. A famous brand is the dream of every trademark owner. But sometimes exceptional popularity proves damaging to the brand. Then the trademark can become eroded or genericised.

Some categories of goods, such as agricultural produce, foods and spirits, are valued by customers primarily because of the exceptional natural conditions of their town, region or country of origin, or because of their traditional production methods. Authorised producers use geographical indications for their products to underline this uniqueness.

Alongside the trademark, the label of a product must also identify the product itself, so that consumers know what type of product they are being offered. But in the European Union alone, there may be a dozen or more legal definitions of certain alcoholic beverages, such as cider or perry. This means that the qualitative requirements differ across various member states, presenting a huge challenge for producers, particularly when the EU policy agenda has taken up the fight against double standards for foods offered in different parts of the EU.

Commercial exploitation of the attributes of well-known, admired or distinguished persons can bring a product positive associations, build recognition, and reinforce popularity. It is a guarantee of the highest quality and reliable origin. Names and images of long-dead historical figures in particular are often found on labels and in ads for alcoholic beverages. Sobieski, Chrobry, Poniatowski, Jagiełło, Kazimierz Wielki and Pułaski gaze at tipplers from bars and store shelves, along with Chopin, Ogiński and Amundsen. Can the use of attributes of a third party, including someone who is no longer alive, constitute an infringement of personal rights, and if so, whose? And what are the legal consequences? The answers are not always obvious.

Alcoholic beverages with counterfeit trademarks are just part of the fraudulent alcoholic beverages market. Fraud can also mean giving false information about a product’s properties. Penal sanctions can be imposed on perpetrators of both types.

The Polish Supreme Court has confirmed that there is no reason not to confirm that a foreign judgment against a bankrupt company is enforceable, and issue an enforcement clause. Courts of lower instance have ruled out this possibility.

Contracting authorities have to bear in mind that protected personal data are processed in their procedures. Procedure documentation has to comply with new laws now that the GDPR is in effect.

The issue of limits on construction of new on-shore wind turbines was examined by the CJEU. Have technical provisions been introduced without notification of the European Commission, and does this mean that Polish courts are required to refuse to apply them?