POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
evant measures set out under the IP Enforcement Directive: • a motion to secure the means of evidence; • a motion to hand over or disclose evidence; or • a motion for information. While the applicability of the first of these measures to cases concerning the protection of trade secrets does not raise any major doubts, the availability of the other two measures in trade secret cases is still not settled in case law. Motion to secure the means of evidence This motion can be filed by a trade secret owner to any person (including the defendant) who possesses the relevant evidence or who can enable such evidence to be secured. Such a motion can be filed either: • before commencing; or • during the main proceedings, until the case is closed in the first instance. In the first scenario, a lawsuit must be filed within a specified court deadline. The deadline is between two weeks and one month as of the date the decision on securing the means of evidence becomes final. This measure aims, in principle, to prevent a situation where achieving the purpose of the evidentiary part of the main proceedings would become impossible or be seriously hindered. The court issues a decision on securing the means of evidence if the applicant shows the following two prerequisites: • their claim is probable (corroborated); and • they enjoy a “legal interest” in securing the means of evidence. The CPC provides a specific definition of a legal inter - est in securing the means of evidence which explains and reflects the purpose of these proceedings.
The motion to secure the means of evidence should be examined by the court immediately at a closed- court sitting. The method of securing the means of evidence is shaped broadly in the CPC and can be freely determined by the court. Such methods may include, for example, the collection of goods, materi - als, tools used for production or distribution, docu - ments and the preparation of a detailed description of these items, combined, if necessary, with samples being taken. The court’s decision issued in the first instance is enforced by a court bailiff. This can be appealed to the court of appeals. Motion to hand over or disclose the means of evidence This motion can be filed only against the defendant in the main proceedings. These proceedings aim to oblige the defendant to disclose or hand over the means of evidence being in the defendant’s posses - sion, in particular, banking, financial or commercial documents, to disclose and prove the facts. To effectively request that the means of evidence be handed over or disclosed, the trade secret owner (claimant) must make probable the circumstances justifying the application, including the circumstances which show that the defendant indeed possesses the means of evidence requested. The defendant has the right to reply and comment on such a motion, and the court may examine the motion and issue a decision, either at a closed sitting or during a court hearing. The court’s decision issued in the first instance is enforce - able. It can be appealed to a court of appeals. Motion for information This motion can be filed by the trade secret owner to any person (including the defendant) who possesses or has access to the relevant information. Such a motion can be filed either before the main pro - ceedings have commenced or during the proceedings until the case is closed in the first instance. In the first scenario, a main infringement case must be initiated within a deadline not longer than one month as of the performance of the information disclosure decision by its addressee – ie, the defendant or other person who was obliged to disclose information.
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