{"id":4096,"date":"2019-03-16T10:44:54","date_gmt":"2019-03-16T10:44:54","guid":{"rendered":"https:\/\/millercanfield.pl\/?p=4096"},"modified":"2025-04-14T18:03:47","modified_gmt":"2025-04-14T18:03:47","slug":"liability-of-intermediaries-for-infringement-of-intellectual-property-rights","status":"publish","type":"post","link":"https:\/\/millercanfield.pl\/en\/liability-of-intermediaries-for-infringement-of-intellectual-property-rights\/","title":{"rendered":"LIABILITY OF INTERMEDIARIES FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS"},"content":{"rendered":"\t\t
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The first European Union regulation that imposes specific duties on indirect infringers of intellectual property rights is Article 8(3) of Directive 2001\/29\/EC of the European Parliament and of the Council of 22 May 2001 on copyright and related rights in the information society. This provision stipulates that Member States must ensure that rightsholders can apply for an injunction against intermediaries whose services are used by a third party to infringe any copyright or related rights. This solution has been reproduced in relation to industrial property rights in Article 11, third sentence, of Directive 2004\/48\/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. While implementing Directive 2004\/48\/EC into the Polish legal order, the Polish legislator omitted the regulations transposing Article 11, third sentence, considering that this objective has already been achieved by the provisions of the Civil Code, including Article 422 of the Civil Code that provides for tort liability for inciters, accomplices, and persons who have knowingly benefited from the damage caused.<\/p>

According to the case-law of the EU Court of Justice, the duties of intermediaries are independent of the fact of their being held liable for the infringement. Therefore, there is no need to allege anything against an intermediary, even failure to exercise due diligence. Moreover, while the objective of the above-mentioned EU regulations is to take steps aimed at putting an end to, or limiting, infringements, they do not give rise to liability for damages. However, under Article 422 of the Civil Code, damages may be claimed, but no action to put an end to the infringement may be taken. As such, this provision does not make it possible to achieve the effects required by the EU directives.<\/p>

On 16 March 2019, an amendment to the Industrial Property Law Act of 30 June 2000 (\u201cAmendment\u201d) came into force. It aims to implement Directive (EU) 2015\/2436 of the European Parliament and of the Council of 16 December 2015, which seeks to approximate the laws of the Member States relating to trademarks. The Amendment for the first time introduces into the Polish legal system an indirect liability for the infringement of intellectual property rights. However, it does so only in respect of the infringement of the trademark right. Pursuant to the amended Article 296(3) of the Industrial Property Law Act, all claims for the infringement of the protection right for a trademark (and, consequently, claims for damages and handover of benefits) may also be pursued \u201cagainst a person who only places the goods labelled with the trademark on the market if they are not provided by the proprietor or a person authorized by the proprietor to use the trademark, as well as against a person whose services were used in relation to the infringement of the trademark protection right.\u201d This provision does not apply to persons whose liability is excluded under Articles 12 to 15 of the Act of 18 July 2002 on the Provision of Electronic Services. As such, service providers providing electronic services will not be liable for transmitting or storing data that infringe a trademark as long as they meet the conditions set out therein.<\/p>

Although the legislator made efforts to regulate the duties of indirect infringers of intellectual property rights, it did so only in relation to the trademark infringement. In addition, the legislator introduced the possibility of asserting pecuniary claims against intermediaries that frequently are not infringers, which is not supported by EU law. In addition, the liability of online intermediaries has been excluded, which is also not supported by EU law. Thus, Polish law remains inconsistent with EU law.<\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

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\n\n\t\t\t\n\t\t\t\t\t\t\u00a9 Miller, Canfield, W. Babicki, A. Che\u0142chowski i Wsp\u00f3lnicy Sp. k.<\/span>\n\t\t\t\n\t\t\t\t\t\t