Claims in respect of infringement of the Anti-Unfair Competition Act — Part I

In the event of an act of unfair competition, a trader whose interest has been compromised or affected may request certain claims: failure to act; removal of the effects of unlawful actions; submission of a single or multiple statement of the relevant content and in an appropriate form; repair of the damage caused, on a general basis; giving unfairly obtained benefits, on a general basis; whether the determination of an adequate monetary sum for a specific social purpose linked to the promotion of Polish culture or the protection of national heritage – if the act of unfair competition was blamed. These claims can be claimed together or only some of them.

In an extensive material, consisting of two parts, we will present different types of claims, based on definitions and case law. first part of the article sets out the issues and describes the possibilities of making claims: to refrain from unauthorised action; to remove the effects of unauthorised action; to make a statement.

I. Claims for failure to act

According to Article 18(1)(1)) The Anti-Unfair Competition Act ‘In the event of an act of unfair competition, an entrepreneur whose interest has been compromised or impaired may request: 1) Non-authorised activities’ 1 .

In the event of a breach or threat of interest by acts of unfair competition, the trader shall be entitled to a claim for the omission of unauthorised action, which constitutes a characteristic measure of civil protection of the interests of such an entrepreneur. A claim for omission is also a claim typical of absolute subject rights, especially in the field of intellectual property, but also personal rights (Article 24 (c) and ownership rights (Article 222(2) k.c.)[2].

Included in the mentioned provision of the Anti-Unfair Competition Act first of claims for failure to act, it plays an important role in protecting generally recognised rights on intangible assets, arising, inter alia, from this Act.

For an entrepreneur whose interest has been damaged or threatened by unlawful actions referred to in the regulations of U.N.K., it is essential that such illegal activities are discontinued as soon as possible (in the case of acts involving an ongoing infringement) and to prevent such actions from being carried out in the future (both in the case of infringements already committed and in the case of threat of infringement). Consequently, the purpose of the claim is to ensure that the injured trader carries out business under a competitive mechanism, but not disrupted by unfair activities of the entities third.

Cases in which the injured entrepreneur may raise a claim for non-compliance can be divided into three groups:

1. the act of unfair competition has already been done and the illegal state continues (so-called continuous acts);
2. Whereas the act of unfair competition has already been carried out, whereas due to the nature of the unlawful action (so-called one-off acts) or the refraining from the infringement, the illegal state no longer exists on the date of the action, whereas there is a real risk of the recurrence of the infringement;
3. There is a legitimate danger that unfair competition will be done in the future, although it has not yet been committed (the perpetrator's actions are in preparation).

First, it should be pointed out that there is no doubt in both the case law and the literature about the possibility of a claim for omission In the first and second from the above mentioned situations[3].

Confirmation of the position in force in the case law is the judgment of the Court of Appeal in Katowice dated 24 May 2011, which explicitly states that ‘to assess the merits of a claim for non-authorised content-based action Article 14(1) and (2) point 4 U.z.n.k.

in relation to Article 18 it does not matter whether the state of the infringement is still pending at the time of the court's closing first instances. The claim is also justified if the state of the infringement of another person's interests is no longer in place, but there is a risk of repeated unauthorised action." 4 .

In addition, it is important that the cessation of actions contrary to the law as a result of the defendant's compliance with the order of the court to provide for the protection of claims by ordering the omission of the actions in question during the proceedings does not render the claim made by the injured entrepreneur unfounded.

It seems problematic, on the other hand, to be the last of the situations described above when an action is brought to forego violations which the potential breacher has yet to commit, but leads to preparations for such action.[5]. Although the Anti-Unfair Competition Act will not find rules that would directly point to the possibility of exercising preventive protection, while, in line with the doctrine-based view, there is a possibility to apply a claim with Article 18(1)(1) u.z.n.k., also as a means of protection against a future potential breach of business interests[6].

It seems that the justification for such reasoning may be certain under Article 1 u.z.n.k. the calculation which indicates ensuring protection of entrepreneurs by preventing and combating unfair competition.

The view of the admissibility of a request for non-preparatory action may also be based on a complementary function Article 3(1) u.z.n.k. In order to act unfairly, it is sufficient to take action directly to produce a condition which is included in the hypothesis of any of the provisions governing actions of unfair competition.

In such a case, the claimant should not be required to demonstrate that the preparatory work fulfils the mark of the unlawful act; it is sufficient for the claimant to prove that the direct effect of the action will be (with a high degree of probability) the existence of a factual condition which satisfies the conditions envisaged under Article 5-17 U.z.n.k.

7 .

In the light of the above, an entrepreneur whose interest has been damaged or threatened may apply for a claim for omission duly justifying and demonstrating that the infringement fulfils all the factors of unfair competition mentioned in the relevant provisions of the U.N.K.

The marks of unfair competition are described in the specific provisions of the chapter 2 U.z.n.k. In case of breach Article 3(1) U.z.n.k.

the plaintiff should already point out arguments in the lawsuit, and, where possible, evidence of a threat or breach of his own interest and of a contradiction with the law or good manners as a result of unlawful actions by the defendant.

“Good customs” is understood to be non-legal, undoubtedly standard of conduct, as is “principles of social coexistence” 8 and ‘established customs’ 9 , which should be respected by natural persons and other economic operators.

According to the case law, in this case, the Supreme Court judgment ‘Any conduct of an entrepreneur (including the standardised) is unfair within the meaning of the anti-unfair competition law. Under Article 10 This law) which violates, among others, good customs and threatens or violates the interests of another entrepreneur or client (Article 3 Act)’ 10 .

In proving the risks or infringements of their interests, which are protected on the basis of the U.N.K., the plaintiff does not need to demonstrate the existence of damage, in particular as a material damage or even the likelihood of its future.

Although the damage falls within the concept of a breach of interests, it is not identical with him.[11].

The protection granted under the anti-unfair competition Act should not be narrowed down to safeguard the economic interests of the trader, but to all economic interests, which excludes the treatment of injury as a condition of sine qua non for the purpose of seeking the non-compliance.

When claiming not to commit an act of unfair competition, it should also be shown that the threat is of a real nature and that this threat should exist on the closing date of the hearing, as the Court of Appeal in Katowice points out: “A claim for omission (the cessation of certain actions) can be used when the act has been committed and the state of unlawful action continues if the act has not yet been carried out - there has been no violation of others’ rights, but there is a concern about its performance and the existing condition threatens the interest of the victim; if the state of violation of rights, the interest of another person is no longer in existence, but there is a danger of repeated unlawful behaviour.

These circumstances must be demonstrated by a claim for omission. In order to take account of the action, it is necessary that it exists at the time the hearing is closed (Article 316(1) (k.p.c.) at least emergency’ 12 .

With regard to the assessment of the actual existence of the threat, that burden shall be transferred to the court which decides in the case. If, therefore, the injured trader acting as a plaintiff does not demonstrate the existence of a real threat of duplication of unlawful activities, the court may dismiss the action in this regard.

It is important from the point of view of the lawsuit that the content of the claim for the failure to comply with the infringements set out therein is correctly presented, as the case law indicates. The request should specify precisely the specific prohibited actions: "a desire and a solution containing a clear, definitive and categorical definition of prohibited activities is necessary not only to ensure that they can be enforced but also to respect the principle of economic freedom and the development of competition" 13 .

In the light of the above, in view of the established position and practice of the courts in this regard, it is appropriate to formulate your demands in the application in such a precise and specified manner that these demands can be enforced. It should be borne in mind that the enforcement body is bound by the content of the implementing title, while after the court proceedings, the parties have no legal possibility to modify the content of the prohibition.

An implementing title for a decision of omission may be exercised several times without the need to bring a new action if, despite prior enforcement of the prohibition, the debtor has again acted contrary to the title[14].

II. Claims for removal of the effects of unauthorised actions

A claim for the removal of the effects of unauthorised actions is included under Article 18(1)(2)) u.z.n.k. and constitutes a claim of the so-called restitution, i.e. one whose purpose is to restore the state before the infringement is committed.

The wording of unlawful action should mean a breach of the interests of another entrepreneur, but also a threat to those interests. Thus, in relation to the claim to remove the effects of unauthorised action, it is also mentioned in the event of the removal of the consequences of a threat to other people's interests.[15].

By claiming to remove the effects of unauthorised actions, for example, it is possible to ask for the destruction of objects that would in future serve to commit an act of unfair competition. The claim described differs from a claim for failure to act, since the removal of the consequences of infringements constitutes an active behaviour.

In order for an entrepreneur to be able to apply for the removal of the effects of unauthorised actions, the following conditions must be met:

• 1) unfair competition has been done, including in terms of endangering the interests of another entrepreneur;
• 2) the effects of the act exist at the time of the judgment (Article 316(1) k.p.c.);
• 3) a causal link arises between the act of unfair competition committed and the effects to be removed after the claim.

To demonstrate fault by the perpetrator or to show damage by the injured entrepreneur is not required in the case of an investigation of the claim described. Unauthorised acts committed by the perpetrator may consequently have consequences in the property sphere as well as in the wider economic interests of the injured entrepreneur.

As in the case of an action for failure to act, and in the case of an action for the removal of acts of unfair competition, the plaintiff is obliged to determine in a very precise and unambiguous manner the content of the request with which he is present. In addition, it is appropriate to indicate a time limit for these activities.

However, in terms of formulating a request for the removal of the effects of unauthorised actions there are doubts as to how to outline the activities that the entrepreneur may demand.

In literature, this problem was largely resolved by the view that the bill does not contain a closed directory of activities falling within the scope of the claim from Article 18(1)(2)) u.z.n.k.

The injured entrepreneur may therefore demand any action necessary to remove the consequences of an act of unfair competition, provided that such action is adequate to the act and is suitable for the removal of its consequences[16].

Furthermore, it should be borne in mind that the demands of the trader against the infringer must be possible to achieve the effect and be within the scope of the activities necessary to achieve it.

By claiming to remove the effects of unauthorised action, the plaintiff must not make the perpetrator feel oppressed or humiliated. In addition, the courts ruling on the cases in question point out that, by means of a claim for the removal of the effects of unlawful actions, the trader has not led the defendant to material damage (e.g.

by selecting the most expensive forms of publication available for that apology).

In view of the above, as regards the removal of the effects of unlawful actions by making a statement in an appropriate form or size and place, the economic and rational burden of the infringer should be taken into account, to which the court draws attention, in the light of the interests of both parties, by which it may issue a judgment other than that requested in the application for an apology.

Moreover, as the Court of Appeal in Poznań rightly pointed out in the judgment dated 10 October 2005 „measures envisaged under Article 18(1)(2) and 3 The laws should be applied in a manner appropriate to the circumstances of the case, on the general assumption that they are intended to remove the effects of an act of unfair competition on the protection of the interests of the trader (at least)’ 17 .

The entrepreneur should therefore take into account the rational burden on the perpetrator.

The Supreme Court and the Court of Appeal in Warsaw also stated in this regard: “The imposition on the offender of an obligation to withdraw products from the market, entailing high costs and inevitable losses, is assessed in the light of Article 5 k.c.’ 18 .

A similar position was also expressed by the Poznań Court of Appeal, which in its judgment dated 10 October 2005, decided to reduce the size of the notice requested by the claimant, in order to minimise the costs charged to the defendant, while at the same time justifying that advertising was ‘only one from a number of elements of the defendant's press release or the advertising calendar, which required a balance of proportions in assessing the extent of the defendant's obligation." 19 .

As described above, the claim concluded under Article 18(1)(2)) u.z.n.k. may also constitute a mechanism to remove the consequences of a breach of business interests. The unique nature of the removal of the effects of the unlawful actions was also pointed out by J. Bleszyński and M. Staszków, indicating that the claim for the removal of effects could “bring to a loss of awareness of the legitimate negative effects of the infringement and restore the psychological balance distorted by the infringement” 20 .

The enforcement of the order for the removal of the effects of unfair competition will depend on the content of the order.

It may take the form of a replacement act which another person may perform for the debtor and in that case the enforcement of the judgment will be carried out on the basis of Article 1049 The procedure envisaged under Article 1049 k.p.c.

will not be necessary if the claimant's authority to perform actions for the defendant at his expense is included in the judgment. It is therefore appropriate to make a request already in the application.

In practice, decisions to order the removal of effects by acts of sole competence of the perpetrator (indispensable activities) are a little less frequent. The execution of such decisions shall be in accordance with Article 1050 k.p.c.

and consists in forcing the alleged conduct of the debtor by means of fines imposed by the district court, acting as an enforcement authority or in a procedure Article 10501 k.p.c. using so-called walking penalties for the creditor[21].

III. Claims for a declaration

Claims for a declaration made under Article 18(1)(3)) u.z.n.k., its aim is very similar to the claim made Under point 2) the same article u.z.n.k., consisting in removing the effects of unauthorised action.

It is therefore often considered that a claim for a declaration is eligible as a concrete form of claim from Article 18(1)(2)) u.z.n.k. or attention is drawn to their similarity to the claim for the removal of effects[22].

There is, on the other hand, neither in the case-law nor in the doctrine of views which suggest that the claim to make a statement cannot take on a self-sustaining nature, which allows its investigation independently of the claim for removal of effects, as pointed out directly by the Court of Appeal in Katowice at the end of 10 November 2005, And ACa 1338/05.

A claim for a specific statement may take on various functions, including information, educational or preventive functions. All of these functions are reflected in taking into account the ongoing claim to publish the statement, its scope and content.

The primary function of making such a statement is to provide information about the specific content of a particular circle of persons to inform the relevant circle of persons of the breach and, consequently, to make them aware of the actual picture of market relations[23].

Without doubt, the information function fulfils a very important role, namely because the submission of a statement of correction of incorrect information, e.g.

as regards products offered by the trader, allows the market balance to be restored in the awareness of the customers of the trader, which may change the decision to purchase the product.

As has already been discussed above, it deserves criticism to be chosen by the plaintiff entrepreneurs, such places to publish a statement that carries significant costs. In that case, the claim to make a statement takes the form of economic repression against the defendant. The Court of Appeal in Warsaw presents the same position in the judgment dated 7 November 2007, And ACa 334/07.

The grounds for the claim to publish the statement are the same as the grounds for the claim to remedy the consequences of the infringement. In particular, the view of some representatives of the doctrine should be agreed (J. Swiss (in:) Act on combating unfair competition... ed. J. Swiss, 2006, p. 846; E. Nowińska, M.

du Vall, Commentary on the Act on Combating..., 2008, p. 301; E. Wojcieszko-Dłuszko, A claim to make a statement... p. 225-226), that a claim for a declaration is not entitled to any act of unfair competition.

In order to update the facts of his investigation, the unauthorised action must result in consequences for which removal of the requested statement is the appropriate tool (a different view is presented by B. Sołtys, Trade names and their protection in Polish law, Kraków 2003, p. 280 and (n)[24].

The form and content of the statement should correspond to its objective. The statement usually includes an apology or correction of specific situations, it can also be addressed to a limited circle of people, to a wider audience, and it can also be published in newspapers in the daily press, websites or social networks.

The choice of the method (form) of the announcement should take into account the objective of this action in the form of the removal of the effects of unauthorised actions, and therefore, in the case of acts which have had effect only among the representatives of the particular economic sector, the statements made in the media addressed to those persons will be appropriate.[25].

Furthermore, when formulating the content of the statement, attention should be paid to making it adequate for the infringement.

The Supreme Court has clearly indicated that it is inappropriate to request an apology to be published in the national media, in the event that the act has had effects only on a well-defined group of persons (SN judgment) dated 8 February 2008, I CSK 345/07; SN judgment dated 19 October 2007, II PK 76/07).

It is also permissible in the case-law to order the infringer to make a statement directly to persons identified by mouth 26 or in writing, by means of a declaration addressed to a specific group of addressees[27].

When formulating a lawsuit, the defendant should indicate exactly not only the content of the statement that he would like to make public, but also the size, font, place of publication and frequency. In addition, there should also be a time limit for the defendant to fulfil his obligation.

The wording of the statement is solely the claimant's duty, which is not the duty of the court of judgment, which does not preclude the possibility of review of all elements by the court.

It may amend the content of the requested statement, adapting it to the extent proven in the infringement process, but also correcting it on the basis of the adequacy criterion, even if the plaintiff has fully proved the alleged claim[28].

The action of the court on the review of the content of the statement should not go beyond the clarification of its content in the application (e.g. shortening it, deleting certain wordings)[29]. However, it would not be appropriate for the court to accept the addition of the content of a statement of claims not found in the application.

It is also assumed that, in terms of the submission of the relevant content of Article 18(1)(3) U.z.n.k., there is a warrant to make public a judgment or court settlement[30].

Summary

Content of the provision Article 18(1) The anti-unfair competition Act contains a catalogue of claims with which an entrepreneur whose interest has been damaged or threatened may appear.

In the event of an act of unfair competition, a trader whose interest has been compromised or affected may request certain claims: failure to act; removal of the effects of unlawful actions; submission of a single or multiple statement of the relevant content and in an appropriate form; repair of the damage caused, on a general basis; giving unwarranted benefits, on a general basis or judging an adequate amount of money for a specific social purpose linked to the promotion of Polish culture or the protection of national heritage – if the act of unfair competition was blamed.

These claims can be claimed together or only some of them.

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