POLAND Law and Practice Contributed by: Krystyna Szczepanowska-Kozłowska, Marcin Ziarkowski, Krzysztof Popławski and Kacper Sobolewski, A&O Shearman
ages by the amount awarded as unlawfully obtained benefits. Claiming lost profits is usually the least preferred patent infringement claim, as it is exceptionally trou ‑ blesome from an evidentiary perspective. Claimants would rather claim unlawfully obtained benefits since once the infringer’s business records are secured, determining how the infringer profited from the infringement is relatively easy. Awards The royalty on revenues for units sold is determined on a case-by-case basis, however legal literature usu ‑ ally indicates values between 1% and 10%. Polish law provides no basis for the court to increase the damages awarded based on whether the infringement was intentional or negligent. It has been a subject of debate whether statutory interest for default in pay ‑ ment can only accrue from the moment the damages are awarded by the court or from the moment the infringed party issues a demand for payment. Procedural Issues Damages are generally considered together with liabil ‑ ity, although it is possible for the court to issue a par ‑ tial award on liability and then continue the proceed ‑ ings to determine the exact compensation. Damages for Wrongful Injunction An alleged infringer can claim damages for a wrongful injunction. See 5.1 Preliminary Injunctive Relief for more details. 5.5 Legal Costs As a rule, the party who loses the dispute has to pay the legal costs, including court fees, attorney fees and certain other expenses (eg, the remuneration of a court-appointed expert). Costs incurred before filing actions are usually not recoverable, nor are many expenses incurred during the proceedings (eg, commissioning a private expert opinion). In practice, the legal costs awarded by the court are often only a fraction of a party’s actual expenditure, particularly in relation to lawyers’ fees.
The maximum filing fee for a statement of claim in cases involving monetary claims (eg, damages claims) in Poland is currently PLN100,000 (approximately EUR24,000). 5.6 Relevance of Claimant/Plaintiff Conduct to Relief The claimant’s conduct may lead to a reduction of the legal costs awarded but will generally not affect the scope of the final relief. 6. Other IP Rights 6.1 Trade Marks Trade mark disputes in the life sciences and pharma sector are uncommon in Poland. However, in 2022, the Supreme Administrative Court issued two judgments concerning a long-standing dispute between Swiss Pharma International AG (Pol ‑ pharma Group) and Hasco TM (Hasco Group) over the “ANACARD PRO” trade mark (Hasco’s trade mark) and its similarity to the “ACARD” trade mark (Swiss Pharma’s trade mark). Both companies produce drugs containing acetylsalicylic acid, which is used in the prevention of heart disease. Swiss Pharma sought invalidation of “ANACARD PRO”, alleging harm to the reputation of “ACARD”, while Hasco argued non-use of “ACARD” and filed for its invalidation. The PPO issued a decision on the invalidation of the “ACARD” trade mark and dismissed the invalidation motion for “ANACARD PRO”, stating that the trade marks were not similar. Both decisions were appealed to the administrative courts and later to the Supreme Admin ‑ istrative Court, which decided to refer the cases back for re-examination, with final rulings expected in the coming years. Swiss Pharma and Hasco were also engaged in another trade mark dispute. In 2016, Hasco sought invalidation of the “Ibuvit K+D” trademark owned by Swiss Pharma, claiming that the trade mark infringes the rights to Hasco’s earlier trade marks, ie, “ibum”, “IBUM POKONAJ BÓL SZYBKO”, “Ibum forte – najsilniejszy Ibum na rynku” and “JUVIT” trade marks, all of which were registered for pharmaceutical prepa ‑ rations. The dispute ended in the dismissal of Hasco’s
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