Jarosław Kruk March 19 2012 IP rights infringements: pursuit of breaches in court Kruk & Partners Law Firm | Intellectual Property - Poland Jarosław Kruk Intellectual Property IntroductionActions to takeCommentIntroductionA number of IP rights infringements occur in Poland, but mainly of rights held by entities in Western Europe, the United States and Canada. Polish entities sometimes commit such infringements, but more often Poland is used as a sales market for pirated goods or computer software made in China and other Asian countries.Unfortunately, the Polish judicial system is not particularly effective in pursuing infringements of intellectual property. For Polish police officers and prosecutors, it is major crime that counts, not infringements of intellectual property - such crimes are generally invisible, as no one is killed and nothing tangible is stolen. Moreover, it is not seen as a priority to pursue someone who uses illegal software when a police officer or prosecutor could be using such software at home, often without realising it.The regulations governing violations of intellectual property are set forth in Articles 283 to 310 of the Industrial Property Act, which accord criminal law and civil law protection against violations, and in the Copyright and Related Rights Act. However, people's awareness of liability for infringements of industrial property is low, due to limited education on this subject and an absence of clearly defined liability.Actions to takeWhen a company's IP rights have been violated, the only solution is to act. If such an infringement is detected, it should be reported as a crime and the victim should seek legal recourse as an injured party. The party should gather evidence itself, hire detectives if necessary and include the evidence in the case files. The party can also purchase pirated goods during so-called 'controlled purchases', so that these can be presented before a court as evidence. Often, a legal opinion, preferably signed by a person of academic standing at a university, is needed in order to convince the law enforcement body that a breach of intellectual property is an offence that Polish law pursues ex officio.The injured party in a Polish criminal case has a number of rights. For example, it can: move for the submission of evidence, such as the questioning of specific persons; request searches; peruse the case files and make copies of evidence that the party itself could never produce and which might be useful in a subsequent civil case for compensation; and appeal against an (all too frequent) decision to dismiss proceedings connected with a violation of intellectual property. Such decisions are largely the result of ignorance on the part of judges.At a later point in court proceedings, the injured party may alter its position to that of an auxiliary prosecutor and seek compensation for its losses.For a company that has suffered a loss, it is very important to choose the correct lawyer. Apart from knowledge of matters involving a breach of intellectual property, the lawyer should possess the required court experience and should be able to patiently explain the legal intricacies of broadly defined intellectual property to police officers, customs officers and prosecutors.CommentFor several years, the number of dismissals of cases involving infringements of intellectual property has been falling, and the number of convictions and the value of compensation has been rising. Polish law enforcement authorities are slowly realising that a breach of IP rights is a serious offence. This is reflected in the amendment to Article 305 of the Industrial Property Act, which provides for the prosecution of persons who sell goods with fake trademarks. Usually, such persons are willing to reveal their suppliers in exchange for (more) lenient treatment, which in turn can sometimes lead to the sharks behind this illegal trade being caught.For further information on this topic please contact Jarosław Kruk at Kruk & Partners by telephone (+48 22 825 5650), fax (+48 22 825 0980) or email ([email protected]).