POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
law of the country where the party required to effect the characteristic performance of the contract has its habitual residence. Determining such a party may be problematic, especially for non-disclosure agree - ments. Depending on the facts of a given case, other rules of determining the applicable law included in the Rome I Regulation may also apply. Again, in this case, the applicable law may also be determined under the provisions of international con - ventions with non-EU states. 2. Misappropriation of Trade Secrets 2.1 The Definition of Misappropriation Under the UCL, each event of disclosure, use or acquiring of another party’s information constituting a trade secret may be considered an act of unfair com - petition giving rise to the claims provided for in the UCL (see 7. Remedies ), in particular, if it took place in the circumstances described below. It is important to note that a trade secret owner does not have to demonstrate that its trade secret was actually used. Acquisition Acquisition of information constituting a trade secret is an act of unfair competition, in particular, when it: • takes place without the consent of the party authorised to use the information or dispose of it; and • is a result of unauthorised access, appropriation or copying of documents, items, materials, sub - stances or electronic files, including both the trade secret itself and any materials that enable inference Use or disclosure of information constituting a trade secret is an act of unfair competition, in particular, when it: • takes place without the consent of the party authorised to use or dispose of it; and of that trade secret. Use and Disclosure
• infringes the obligation limiting its use or disclosure resulting from the applicable laws, legal action or another act, or if it was effected by a person who acquired the information by performing an act of unfair competition. Good Faith and Due Diligence The disclosure, use or acquisition of information con - stituting a trade secret is also an act of unfair competi - tion if, on the date of its disclosure, use or acquisition, the person performing such actions: • had knowledge; or • with observance of due diligence, could have had knowledge, of the fact that the information was acquired directly or indirectly from the party that used or disclosed it illegally. In addition, the use of a trade secret constitutes an act of unfair competition where such use consists of producing, offering, placing on the market, importing, exporting or storing goods, if the person performing such activities: • had knowledge; or • with observance of due diligence, could have had knowledge, of the fact that the properties of the goods, including aesthetic or functional, the process of their manu - facture, or the manner in which they were sold, were shaped to a significant extent as a consequence of the illegal use, disclosure or acquisition of a trade secret. The above rules assume the good faith of the person disclosing, using or acquiring trade secrets. The trade secret owner has to demonstrate that such actions were performed in bad faith. Further Exceptions The disclosure, use or acquisition of information con - stituting a trade secret is not an act of unfair competi - tion if it occurred: • to protect a justified legally protected interest; • under the exercise of freedom of expression;
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