The claim for has been introduced into the Polish legal system as a result of implementation of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. Initially, the regulation was separate for industrial property rights (provided for in Industrial Property Law Act of 30 June 2000) and copyright (provided for in Copyright and Related Rights Act of 4 February 1994). The regulations aroused divergences in jurisprudence and doctrine, and it was also alleged that they were incompatible with the above-mentioned directive. The regulation of a claim for information was changed to be consistent for all intellectual property rights with the amendment of the provisions of the Code of Civil Procedure in 2020 and became a part of the newly added provisions on proceedings in intellectual property rights  cases.

Subsidiary measures

A claim for information is one of the so-called subsidiary measures which are intended to facilitate the protection seeker’s evidentiary obligations in civil proceedings related to infringements of IP rights. These measures include, apart from the claim for information, the securing of evidence and the disclosure or release of evidence. As it is well known, in cases of infringement of intangible property, it is usually particularly difficult to estimate the damage or the extent of the infringement. Therefore, the above-mentioned subsidiary measures, including a claim for information, are important for the effective protection of intellectual property rights. The current legal environment in Poland can be considered adequate and compliant with the Directive. Nevertheless, it still gives rise to many interpretational divergences, and the judicial practice still falls short of the expectations of the IP right holders to ensure greater effectiveness of civil proceedings in Poland.

Scope of application of relevant provisions

According to Article 479¹¹³ §1 of the Code of Civil Procedure: ‘At the claim of the entitled party, if they credibly demonstrate circumstances indicating infringement, the court may, prior to the commencement of infringement proceedings or during their course until the conclusion of the trial at first instance, summon the infringer to provide information on the origin and distribution networks of the goods or services, if this is necessary for the assertion of the claim’. In addition, Article 479¹¹⁵ §1 of the CPC indicates what specific data the summons may concern, and these are, i.a., information concerning producers, manufacturers, distributors or suppliers, as well as quantities and prices of ordered goods and provided services. The court grants the request for a summons for information if the premise listed in Article 479¹¹⁶ par. 1) CCP, i.e. credible demonstration of infringed intellectual property rights is fulfilled.

One of the most significant interpretational doubts is whether a claim for information is also applicable in proceedings concerning infringement of unfair competition rules. Pursuant to Article 479⁸⁹ §1 and 2 of the CPC, intellectual property cases to which subsidiary measures apply include cases for the protection of: copyright and related rights, industrial property rights and other rights in intangible assets (§1), as well as cases for preventing and combating unfair competition and protection of personal rights subject to their commercialization (§2). 

However, the provisions concerning the claim for information, in particular the said Article 479¹¹⁶ par. 1) of the CCP, seems to limit the scope of application to cases where exclusive rights are infringed. Acts of unfair competition are assumed to be protected as tort. Moreover, before 2020 a claim for information was not available to claimants seeking protection for commitment of unfair competition rules. However, Recital 13 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights provides for the possibility to extend the provisions of the Directive, i.e. the envisaged scope of subsidiary measures, to acts which do not infringe absolute subjective rights, thus Polish regulation allowing their application in unfair competition matters would not contradict the Directive.

Divergent interpretations and jurisprudence

As a result of the ambiguous scope of the provisions, three different interpretations have developed in the doctrine. Also, the jurisprudence of the courts is divergent, which makes pursuing a claim for information in Poland complex and uncertain. 

Firstly, according to a literal interpretation, some authors limit the possibility to file a claim for information only to cases concerning the protection of copyright and related rights and industrial property rights. Such an interpretation of the provisions leads to a diversification of the scope of subsidiary measures in the CCP, as securing of evidence and disclosing or issuing of evidence is not limited in this respect. This view prevails in the jurisprudence to date, so courts often dismiss claims for information in cases of combating acts of unfair competition.

Secondly, a position has emerged according to which subsidiary measures should apply in all intellectual property cases if they concern exploitation of an intangible good (which, however, is not necessarily an object of absolute subjective rights). The Regional Court in Warsaw, in the case No. XXII GWo 62/21 stated that „the only exception should be made for those acts of unfair competition which concern exploitation of intangible goods, copying of products and an intangible good, such as a company secret. This is because it is only in these cases that there are characteristic problems, which were the reason for granting the entitled parties stronger procedural rights than in typical civil cases’.

Thirdly, according to the most liberal standpoint, all subsidiary measures, including a claim for information, should be applied to the same extent in all intellectual property cases, i.e. both those concerning copyright and related rights, intellectual property rights and combating unfair competition. This broad understanding of the notion of intellectual property cases was supported, inter alia, by the Court of Appeal in Poznań in its decision of 5.04.2022 (I AGz 5/22). It stated that ‘not all torts of unfair competition are related to intellectual property, since some of them give rise to the need to protect other interests of an entrepreneur than his/her intangible assets’, however, they invariably fall within the subject matter of subsidiary measures. This solution is supported primarily by the purpose of the subsidiary measures introduced by the amendment, i.e. obtaining necessary information on the activity of the obligor and, as a result, effective enforcement of claims for damages. On the other hand, the amendment itself was aimed at ensuring uniformity of application of the provisions in question in all cases concerning the intellectual property law. 

Conclusion

The ambiguity of CCP provisions concerning the claim for information has led to divergences in jurisprudence, which results in the persistence of an undesirable state of lack of uniform practice When analyzing the jurisprudence of courts, there is a noticeable tendency to narrow the scope of application of a claim for information to cases indicated only in Article 479⁸⁹ §1 of the CCP. However, it seems that the practice is moving towards liberalizing this issue and including cases of combating unfair competition in the catalogue of cases to which evidentiary facilities in the form of claims for information are applicable.