In intellectual property cases litigations are most often considered a necessity when negotiations fail. An alternative to a lawsuit is conciliatory proceedings, provided for in article 184 Act of 1 November 1964 Code of Civil Procedure.
Submitting a motion for conciliatory proceedings shows that the entitled person is determined to pursue the claim and that filing a lawsuit is a real risk in the mater. Therefore – as our practice shows – conciliatory proceedings may be effective even in situations where an infringer has stubbornly refused to satisfy the claims in negotiations.
Conciliatory proceedings are conducted before district courts, even though the intellectual property cases belong to the jurisdiction of regional courts. The formal acquirements od the application are much lesser in comparison to a lawsuit. Claims do not need to be proven and only a brief description of the case is required. The latest amendment to the Code of Civil Procedure introduced an obligation to present settlement proposals (earlier this requirement was pointed out by jurisprudence). Our latest practice shows that some courts also require that concessions proposed to the infringer should be directly indicated already in the motion for conciliatory proceedings.
There is usually only one hearing in the case, unless the parties request an adjournment to have time to reach an agreement. Courts usually agree to that although they are not obliged to do so. A settlement concluded before a court has the force of a court judgment, which means that it can be enforced in enforcement proceedings without the need to file a lawsuit first. This is beneficial especially when the settlement is not being fulfilled by one party. If the settlement was an out of court settlement it would be necessary to sue the other party first before the enforcement. So a court settlement significantly facilitates and shortens proceedings.
As compared to the previous law, an unfavorable change is the increase of the court fee, which is now 1/5 of the fee for a lawsuit (previously it was PLN 300, which is less than Euro 100). A court fee for non-pecuniary claims is still low, however a court fee for pecuniary claims has increased significantly.
What is interesting is that there is even an advantage in not reaching a settlement before the court, as the statute of limitations for claims is interrupted by initiating the proceedings. This gives the parties more time to finally resolve the dispute.