POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Damian Ludwiniak, Sołtysiński Kawecki & Szlęzak
1.6 Intellectual Property and Publicity Rights The use of intellectual property or an individual’s name, picture, voice or likeness in advertising is assessed in light of a general prerequisite that any advertise - ment must comply with law and good commercial practices. This means that the use of third-party IP rights, names, pictures, voices, likenesses or any oth - er personal interests/moral rights ( dobro osobiste ) in an advertisement must satisfy the conditions of such permitted use as set out in the relevant laws govern - ing a specific sector – eg, by obtaining the relevant licence, consent or authorisation. Specific rules apply under the UCL to comparative advertising in relation to third-party IP rights, reflecting the relevant conditions set out in Directive 2006/114/ EC. For example, comparative advertising cannot dis - credit or denigrate the trade marks, trade names, oth - er distinguishing marks, goods, services, activities or circumstances of a competitor, and cannot take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products. 1.7 Self-Regulatory Authorities The Advertising Council and the Advertising Ethics Commission In Poland, the Advertising Ethics Commission (AEC) serves as a self-regulatory authority through the Advertising Council (www.radareklamy.pl). Within its competences, the AEC can examine complaints against advertisements submitted by both consumers and businesses. Upon examination of a complaint and conducting proceedings, the AEC may, among other actions, issue a resolution in which it: • upholds the complaint and communicates to the business (defendant) that the advertisement should be amended in such a way as to remove the breach of Code standards as soon as possible; or • upholds the complaint and communicates to the business (defendant) that the complainant should cease advertising. Each party may file an appeal against the resolution issued by the AEC. The appeal is examined by the AEC Appeal Team, which consists of AEC members
es; self-promotion is also advertising. Similarly, the broadly worded phrase “advertising tobacco prod - ucts, electronic cigarettes, refill containers or tobacco props” is set out in the Law of 9 November 1995 on Health Protection against the Effects of Tobacco and Tobacco Products. General, Cross-Sector Laws As the law governing fair competition, including fair advertising within a cross-sectoral scope (ie, it is applicable to all businesses to the extent sector-spe - cific laws do not apply) and while transposing Direc - tive 2006/114/EC of 12 December 2006 concerning misleading and comparative advertising, the UCL does not incorporate its own definition of “advertis - ing”, thereby leaving this to case law and doctrine. Polish case law under the UCL has already discussed the meaning of “advertising” in a very broad manner. For example, in its judgment of 26 January 2006 (Case No V CSK 83/05), the Polish Supreme Court clarified the meaning of “advertising”, outlining that it is any statement addressed to potential consumers relating to goods or services, or a business offering goods or services, to encourage and persuade the recipients to purchase goods or use services. The incentive may be expressed directly (eg, by using terms correspond - ing to specific activities that will result in the sale of goods or services) or indirectly (by creating a sugges - tive image of the goods and services, or of the entre - preneur themselves, to the extent that the recipients feel an irresistible desire to purchase the goods and services). This example of “advertising” understand - ing, as given by Polish case law, is substantially in line with a more general definition expressly provided in Directive 2006/114/EC. 1.5 Pre-Approvals In principle, no pre-approvals are required from the government or other authorities before running an advertisement. The Advertising Council offers advertisers a service whereby it assesses a given advertisement in light of the Code of Ethics in Advertising.
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