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The Warsaw Voice » Other » June 17, 2009
Sweden in Poland
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The Need to Know Foreign Customs
June 17, 2009   
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Trademarks and industrial designs often decide whether a company is successful, and they should be carefully protected, say Berenika Depo and Michał Siciarek from the Łazewski Depo & Partners law firm, who talked to Magdalena Fabijańczuk.

Why do disputes over intellectual property rights involving Scandinavian products often end up in court?
Berenika Depo: Scandinavian companies are used to less formal commercial contacts. Many relations in Scandinavia, including trade relations, are based on a social contract and faith in the partner's loyalty. I lived in Sweden for 19 years, where I went to school and studied law. I remember when we learned about the civil code there and my professors said it wasn't necessary to regulate many issues with a written contract. That's why Scandinavians starting work with a Polish distributor very often don't sort out intellectual rights on paper. To them it's natural that the trademark or product design is theirs.

What problems can this cause?
Michał Siciarek: If a trademark isn't registered at a patent office, someone else can register it. Cases of registration of someone else's brand first occurred here in the fast-paced 1990s, when dozens of small companies sprung up on the Polish market. Scandinavian manufacturers entering the Polish market started working with local distributors without thinking about whether their industrial designs and trademarks were protected in Poland. Later it would sometimes turn out that a distributor who had promoted the Scandinavian product on our market, would register the trademark, reserve internet domains and start making a very similar product himself. That was a wake-up call. The Scandinavian manufacturer would come to a law firm asking what could be done. With the lawyers, they looked into the documents and then it turned out they had contracts and invoices but not a word about protection of intellectual property: the product name, store décor and logos or restrictions on the distributor's use of the name in advertising campaigns.

Is it possible to prove who owns the rights to a brand in such a situation?
M.S.: You start negotiating. The Polish distributor thinks his contribution to promoting and popularizing the brand in Poland is so great that he has the right to use the trademark. The case may end up in court, where you have to remember that a verdict obvious to the client is not necessarily so obvious for the court. A judge needs a lot of evidence.

I don't mean to say that Polish partners are disloyal. It's just that to them, if something isn't forbidden or registered, then it can be used. It's hard to expect a Polish partner to operate according to Scandinavian customs, because the custom in Poland is different.

What advice would you give Scandinavian manufacturers with operations in Poland?
M.S.: The most important thing is for them to learn about Polish law and business customs. That's why we want to be guides around the Polish market for our clients-who are chiefly Scandinavian due to our law firm's nature. We not only explain legal regulations to them and draw up contracts, and represent them in court if necessary, but also show them the kind of relations that are needed between an entrepreneur, his trade partners and official bodies. Scandinavians are amazed at Polish formalism, and making sure this formalism doesn't hamper their business is one of the areas where we see we have our role.

We've spoken about trademark protection, but what about protection of designs?
B.D.: Things are rather worse with design protection, regrettably. There is still little awareness in Poland that industrial designs are protected by law. While we are starting to understand that a trademark or an invention is protected, we still have a problem with designs being protected. That's why there are many cases in courts regarding infringement of designer rights, especially concerning furniture design, often Scandinavian ones since, as we all know, Scandinavia is famous for its modern and original design.

Compared to a trademark, which is very concrete, a design seems intangible. How can it be protected?
B.D.: Of course, a protected industrial design has to represent a certain originality of idea and an aspect of novelty. Copyright law protects the look of an innovative sofa, chair or sideboard in Poland, but a design can also be registered with the patent office and with the Office of Harmonization for the Internal Market (OHIM) where trademarks and industrial designs receive registration for the whole of Europe. A good example is one of our Scandinavian clients, the manufacturer of a very original designer piece of furniture. There are five ongoing court cases regarding infringement of the rights to this item. Luckily, the industrial design was registered in advance and is protected in all of Europe.

Does intellectual property protection end with patent office registration and the right clauses in contracts with trade partners?
B.D.: These are the first and most important steps, but that's not all. The next thing is monitoring the market and the design registration-checking to make sure that no one is using one's designs and trademarks. Companies can conduct such monitoring themselves or get a law firm to do it for them.

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