POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
the prevailing view is to base these claims on either the infringer’s relevant income or their profit (income less cost). No faulty behaviour of the infringer needs to be shown for this financial claim. Redress of Damage To effectively seek compensation based on general civil law terms, the claimant should demonstrate: • trade secret infringement by the defendant; • damage caused to the claimant; • a causal link between this infringement and the damage caused; and • the defendant’s fault, which may also include neg - ligence. In turn, if a fictitious licence is sought, the claimant should demonstrate: • the trade secret infringement by the defendant; • the amount of the fictitious remuneration due to the claim should a licence be granted to the defendant; and • the defendant’s fault, which may also include neg - ligence. Punitive Damages Punitive damages are not available under the CPC. 7.3 Permanent Injunction Character of a Permanent Injunction Under Polish procedural laws, a permanent injunction should be understood as a final and binding judgment issued by the court on the merits considered. Infringing Products For trade secrets infringement claims, upon a claim - ant’s request, the court may also decide in its judg - ment on products, their packaging, advertising materi - als and other items directly related to the infringement. In particular, the court may order their destruction or include them towards compensation. Where the infringing products remain in the defendant’s pos - session or control, the court may order their seizure, destruction or withdrawal from the market. However, once the ownership of the infringing products has been transferred by the defendant to third parties (eg,
wholesalers or final customers), a recall of such prod - ucts is generally not available. Limiting Employees Limiting an employee’s subsequent employment to protect trade secrets is possible only within a non- compete arrangement after employment and against remuneration due to the employee during the non- compete period. A court judgment can only prohibit specific actions that infringe trade secrets; it may not limit defendants in choosing their workplace. Duration Final and binding judgments in trade secrets infringe - ment cases are not limited in time. However, they may cease to bind if a trade secret becomes publicly avail - able. 7.4 Attorney’s Fees If the claimant is successful in trade secrets litiga - tion, they can request that the defendant reimburse the costs of asserting their rights. Such costs of legal proceedings also include attorneys’ fees. However, the recovery of attorneys’ fees is possible only within the limits set out in law. This limit is capped at a rela - tively low level. A claimant’s motion is necessary to be reimbursed for the costs of legal proceedings, includ - ing attorneys’ fees. 7.5 Costs Reimbursement of the costs of legal proceedings includes: • the court fee incurred by the party; • the costs of travel to the court of the party or its representative; • the equivalent of earnings lost as a result of appearing in court as well as mediation costs (if conducted); and • some other costs (such as translation costs). Such costs also include attorneys’ fees (see 7.4 Attor- ney’s Fees ). If the claims were only partially confirmed by the court, the costs are either mutually offset or shared proportionately.
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