IP Insights – Article 10(2) of the Act on combating unfair competition

In the latest edition of IP Insights you’ll learn about the practical implications of Article 10(2) of the Act on Combating Unfair Competition, including:

• What types of packaging labels may violate unfair competition laws?
• What claims are available to a business harmed by misleading packaging?
• What do criminal law provisions say on the matter?

We encourage you to read!

Packaging – Article 10(2) of the Acton combating unfair competition

The legislation serves to protect the threatened or damaged interests of entrepreneurs regarding, among other things, packaging. The subject of protection is the information and indications accompanying the marketed product. The premise of the tort is to mislead purchasers as to the individualisation and characteristics of the product. It anticipates the use of authentic markings and information in trade.

Misleading regarding the origin of the product through packaging

Tort under Article 10(2)

• prohibition against misrepresenting the origin and other material characteristics of goods and services.

Re: individualising markings, including descriptive information relating to the products offered. It also applies to registered as well as unregistered trade marks.

Marking of goods

Marking of goods

• creating the impression in the minds of the public that the goods in question come from another producer, thus creating a link between the sign under which a person operates and the goods. Also through packaging.

The commented provision protects against confusion as to the origin of the good (service).

Evaluation of misrepresentation

The state of mind of the average model market participant is relevant for the assessment regarding the possibility of causing prohibited confusion.

Assessment of the danger of misleading consumers, based on the court’s assessment based on the totality of the circumstances, taking into account the relevant consumer benchmark.

Important

Article 10 of the Act on combating unfair competition covers the unfairness of actions of a trader which are also misleading as to other, besides the origin, significant characteristics of goods and services, in particular: quantity, quality, ingredients, suitability.

The scope of regulation includes both informative and descriptive markings if they cause confusion.

It is important for the modern buyer to refer to the environmental credentials of a given product. Customers are keen to buy “eco” or “bio” products (on the packaging).

Misleading packaging

Pursuant to Article 10(2) of the Act on combating unfair competition, the packaging of a product may be unfair. Packaging is an important element of marketing; in many cases it is what determines the market success of a product. Sometimes dishonest traders use packaging that may mislead customers as to the origin of the goods.

The provisions of Article 10 of the Act on combating unfair competition

An act of unfair competition under Article 10(1) of the Act on combating unfair competition is the labelling of goods or services, or the absence of such labelling, so as to mislead customers as to the origin, quantity, quality, ingredients, execution, fitness for purpose, repairability, maintenance or other material features of the goods or services, or the concealment of the risks inherent in their use.

It is also an act of unfair competition to market goods in packaging which may have the effects specified in Article 10(1) of the Act on combating unfair competition, unless the use of such packaging is justified by technical reasons.

Civil liability for torts associated with packaging.

Claims of the injured trader

In the event of an act of unfair competition (e.g. through unfair packaging), the trader whose interest has been threatened or infringed may claim:

• to refrain from prohibited activities;
• to remove the consequences of the unauthorised activities;
• to make a single or multiple statement of appropriate content and form;
• compensation for the damage caused, in accordance with the general principles;
• surrender of unjustly obtained benefits, under the general rules;
• an award of an appropriate amount of money for a specific social purpose related to the promotion of Polish culture or protection of national heritage – if the act of unfair competition was culpable.

The burden of proof of the truthfulness of the signs or information affixed to the goods or their packaging, or of the statements made in advertising, rests with the person alleged to have committed an act of unfair competition involving misrepresentation.

Claims for acts of unfair competition are subject to a statutory limitation period of three years. The limitation period commences independently for each infringement.

Criminal provisions

False or missing marking of goods and services

Any individual or entity that misleads customers regarding the origin, quantity, quality, components, method of production, utility, possible use, repair, maintenance, or other significant features of goods or services—through marking or failure to mark—thereby exposes customers to risks associated with their use.