The Polish Constitutional Court limits the right of information under the Enforcement Directive: Part 2

Hogan Lovells

On 6 December 2018 the Polish Constitutional Tribunal found that the right to request information on the origin and distribution networks of the goods or services which infringe an intellectual property right from persons other than the infringer is contrary to the Polish Constitution (see our earlier post here). The written justification of the decision has just become available.

According to the written justification, the Tribunal questioned the fact that these types of information may be requested already in preliminary injunction proceedings. The Tribunal noted that a key characteristic of preliminary injunctions is that its consequences can always be reversed. Reversal is not however possible in the case of the right of information – the consequences of giving information are always irreversible.

Moreover, the Tribunal found that the right of information disproportionately limits the freedom of economic activity of persons obliged to provide such information. In particular, the Polish law does not provide sufficient safeguards against abuse of the right to information. The person who receives the requested information is under no obligation to initiate court proceedings against the infringer or to take any other action. Where no proceedings against the infringer are initiated, the information is provided for no good reason.

As the result of the decision, there is no longer a legal ground in Poland to request information on the origin and distribution channels of the infringing good from non-infringers. Requesting information from the infringer, as dictated by the Directive 2004/48/EC on the enforcement of intellectual property rights, is still allowed.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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