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[19.12.2018] THE RIGHT OF INFORMATION TOO INDEPENDENT

The Polish Constitutional Tribunal having considered, at a sitting in camera on 6 December 2018, a constitutional complaint of the company GRUPA ALLEGRO sp. z o.o. adjudicated that Article 2861(1)(3) of the Industrial Property Act is inconsistent with Article 22 in conjunction with Article 31(3) of the Constitution of the Republic of Poland.

The Article 22 of the the Constitution of the Republic of Poland provides:

Limitations upon the freedom of economic activity may be imposed only by means of statute and only for important public reasons.

Article 31(3) of the Constitution provides:

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

The first paragraph of Article 2861 of the Industrial Property Act in its third point provided:

1. The court of place where the perpetrator runs his activity or on which his property is located, competent to hear the case involving infringement of industrial property rights, shall, also before an action is brought, however no later than three days, or seven days in case where the matter is particularly complicated, from the date of its filing to the court by the holder of the patent or supplementary protection right, or the right of protection or the right in registration, or by the party who is permitted by law to do so, examine a request for:

(1) (…)

(2) (…)

(3) securing the claims by obligating a party other than the infringing party to provide information, as necessary in enforcing the claims referred to in Articles 287(1) and 296(1), on the origin and distribution networks of the goods or services which infringe the patent, supplementary protection right, right of protection or right in registration, where the likelihood of infringement of these rights is great, and

(a) that party was found in a possession of the goods which infringe the patent, supplementary protection right, right of protection or right in registration, or

(b) that party was found to make use of the services which infringe the patent, supplementary protection right, right of protection or right in registration, or

(c) that party was found to provide services used in activities which infringe the patent, supplementary protection right, right of protection or right in registration, or

(d) that party was indicated by a person referred to in point (a), (b) or (c) as being involved in the production, manufacture or distribution of the goods or the provision of the services which infringe the patent, supplementary protection right, right of protection or right in registration, and

the above activities are intended to directly or indirectly gain profit or other economic benefits, however the activities of customers in good faith being excluded therefrom.

The court in the judgment pointed out that the challenged provision of Industrial Property Act disproportionately interfered with the freedom of economic activity. This was determined by too broad independence of the nature of the right of information. The provision gave the opportunity to request and obtain (irreversibly) information – from third parties (other than the infringing party) – without connection with the violation of industrial property rights. For example, he allowed to obtain information before the trial was initiated, but he did not impose the obligation to initiate it. In addition, the Tribunal drew attention to the defective way of wording of the challenged provision.

The ruling was unanimous. [AW]