Providing information in IP disputes – the question of form

Jun 3, 2019

There is no doctrine or jurisprudence about the form in which a so-called information claim should be carried out (Article 2861 of the Act of 30 June 2000 Industrial Property Law (IPL) and Article 80 of the Act of February 4, 1994 on Copyright and Related Rights (AC)). The question about the form of providing information is closely related to the ratio legis of the regulation. Its aim is to facilitate obtaining evidence by requesting it from the defendant in order to formulate relevant claims in an infringement matter. Therefore, above all, the information has to be  reliable because it may serve to specify the factual basis of the statement of claims.

IPL and AC do not contain any specific regulation regarding the form in which the information should be provided by the defendant. May it be any form? Will it be a fulfillment of the information obligation to present a computer printout or an electronic file? This is primarily about situations in which the obligated party is to provide certain aggregate information, which is usually presented in a form of a table. Most often this is information about the number of products sold, revenues from sales, costs, etc.

In our opinion the information provided by the defendant must be presented in such form that there is no doubt as to its veracity. The credibility of the data should be confirmed primarily by the signature, e.g.  of the defendant, the main accountant or a person representing the defendant. The plaintiff does not have the tools to verify the submitted data, and the courts are reluctant to accept evidence from the expert’s opinion to verify such information, especially when it would be necessary to carry out activities at the registered office of the defendant.

In one of our cases, there was a situation in which the defendant’s attorney delivered a table with specific information to the court file. This table was not signed by anyone. Of course, the trustworthiness of the data could not be confirmed by the attorney – this is not his procedural role. The conduct of defendant in the whole proceeding allowed a justified suspicion that this data may be unreliable.

Nevertheless, the court in the case considered that the presentation of the table was the fulfillment of the obligation imposed by the court, and the plaintiff had no possibility to request information in a different form. What is more, the court ordered damages on the basis of the table, without any verification.

In our opinion, the court’s position in the case was wrong. The provisions of the IPL define only the content of the information obligation. The fact that there is no regulation about the form does not mean that it can be any form, and the relevant provisions of the Code of Civil Procedure regarding private documents (CCP) should apply. According to art. 245 CCP, a private document in a written or electronic form is evidence that the person who signed it made a declaration contained in the document. Only this form, i.e. authenticated by a signature, means accepting responsibility for the truthfulness of data included in the document.

A comprehensive look at the regulation on providing information by the defendant leads to a conclusion that the information should have a form of a private document, i.e. it has to be signed by a relevant person. This means that the presentation of a table, or a printout with information without a signature, should be considered as a non-fulfillment of the information obligation.

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