The Polish Constitutional Court limits the right of information under the Enforcement Directive

Hogan Lovells

Polish law provides for the right of information on the origin and distribution networks of the goods or services which infringe an intellectual property right, as dictated by the Directive 2004/48/EC on the enforcement of intellectual property rights. So far, this information could be requested both from the infringer as well as from third persons fulfilling certain conditions. However, the Polish Constitutional Tribunal has just found that the right of information from persons other than the infringer is contrary to the Polish Constitution. The Tribunal believes that the provision of law providing for this right breaches the rule of freedom of economic activity and does not provide sufficient safeguards against abuse of the right (in particular if the requested information constitutes a trade secret).  Consequently, under Polish law it will no longer possible to request information concerning origin and distribution channels of the infringing good from third persons.

The decision was made on 6 December 2018. It will enter into force as soon as it is published in an official bulletin. The written justification is not available yet and we expect that it will be published in the following weeks or months.

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