POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
if Polish courts have jurisdiction, in particular under Regulation (EU) No 1215/2012 of the European Parlia - ment and of the Council on jurisdiction and the rec - ognition and enforcement of judgments in civil and commercial matters (12 December 2012) (the “Brus - sels I bis Regulation”), in particular, if the defendant is domiciled in Poland or if the infringement of trade secrets rights takes place simultaneously in several states (including Poland) as might be the case with internet-based infringement. In relation to non-EU states, jurisdiction may also be determined under international conventions or the CPC. Applicable Law The Rome II Regulation The law applicable to acts of unfair competition should be determined under Regulation (EC) No 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations (11 July 2007) (the “Rome II Regulation”). The European Com - mission indicated in the Explanatory Memorandum to the Rome II Regulation that the disclosure of trade secrets and industrial espionage should be consid - ered acts of unfair competition for applying the Rome II Regulation (and not as an infringement of IP rights). The applicable substantive law may also be deter - mined under the provisions of international conven - tions with non-EU states that include conflict-of-law rules. Acts of unfair competition infringing the interests of a specific competitor For acts of unfair competition which exclusively affect the interests of a specific competitor (including the misappropriation of trade secrets), the law of the country in which the damage occurs applies irrespec - tive of: • the country in which the event giving rise to the damage occurred; and • the country or countries in which the indirect con - sequences of that event occur. However, where the person claimed to be liable and the person sustaining damage both have their habitual
residence in the same country at the time the dam - age occurs, the law of that country applies. Where it is clear from all the case’s circumstances that the act of unfair competition is manifestly more closely connected with a country other than that indicated above, the law of that other country applies. A mani - festly closer connection with another country might be based, in particular, on a pre-existing relationship between the parties (eg, a pre-existing non-disclosure agreement) that is closely connected with the act of unfair competition in question. Acts of unfair competition infringing the interests of several competitors (market-related infringements) In some cases, it may be assumed that the misap - propriation of trade secrets affects the interests of several competitors in a given market (eg, because of the introduction into trade of the infringing products). In such situations, the law of the country where com - petitive relationships are, or are likely to be affected, applies. The “mosaic approach” In both the cases described above (ie, the acts infring - ing the interests of one or several competitors), apply - ing the Rome II Regulation’s provisions to multi-juris - dictional acts of unfair competition may often result in a “mosaic approach” being taken – ie, one where it is necessity to assess the consequences of the infringe - ment of the trade secrets rights in each country based on that country’s substantive law. Applying several national laws in proceedings before one court may constitute significant practical difficulty in trade secret litigation. Claims based on a breach of contract (the Rome I Regulation) Claims related to trade secrets may also result from the breach of a contract (eg, a non-disclosure or licence agreement). In such a case, the applicable law should be determined under Regulation (EC) No 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations (17 June 2008) (the “Rome I Regulation”). As a general rule, a contract is governed by the law chosen by the par - ties. If the parties to the contract have not chosen the applicable law, then the contract is governed by the
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