Zdeněk Kučera (1928—2017)

Zdeněk Kučera (1928—2017)

The subject of this paper relates to trademark trolling — a phenomenon, which may have a negative impact on entrepreneurs and their businesses. A trademark troll shall be defined as a person, who applies for registration of trade marks without an actual intention to make a commercial use of them. A trademark troll’s objective is to cause other enterpreneurs to pay for a license enabling to use those trade marks by threatening them with a litigation. The aim of the paper is to consider whether the Polish and the European Union’s legislation guarantees the enterpreneurs a sufficient protection from trademark trolls. This protection can be provided during the trade mark’s registration procedure initiated by a trademark troll, mostly with the use of absolute ground for refusal to register a trade mark, which is making an application in bad faith. Apart from that, negative effects of trademark trolling can be decreased after the registration procedure — the registration of trademark can be declared invalid by the Patent Office, whereas the possible trademark troll’s legal action against the enterpreneur harmed by trolling could be dismissed by the court, as the action would be contrary to the principles of social co-existence.

Parental trolling is a dangerous practice against children. It makes it possible to make ridiculous and derogatory pictures of children on social networks. Low legal awareness and social exhibitionism cause that legal guardians often do not realize that their actions may violate the personal rights of the child and, consequently, may result in legal consequences. The sense of parental authority sometimes goes so far that the child in the eyes of parents decreases to the rank of a thing over which one has complete power. Publishing nude photos of two or three-year-old children who play naked in the sandbox or run in the garden is becoming a more common practice. The most dangerous phenomenon accompanying parental trolling is social acceptance. Posting photos or entries that harm the good name of the person concerned may constitute a violation of personal rights. Personal rights are subject to civil law protection, regardless of other legal regulations. A child has not full legal capacity so can not dispose of his own rights. The child’s guardians have the responsibility to look after a good child’s image. Although in the light of law, parents or legal guardians consent to the dissemination of the image of a child, this does not mean that the child’s personal rights can not be violated.

The phenomenon of patent trolling is a distortion of the idea underlying patent protection. The effects of the so-called patent trolls are, inter alia, the inhibition of technological development, limiting innovation and technology transfer, and restricting access to these technologies for consumers on the market. Negative effects also manifest themselves in showing deficiencies in the patent protection system, lack of trust in this system and reduction of investments in the field of research & development. All these effects are the negation of what was the foundation of the introduction of patent protection. The aim of the author is to analyze the existing regulations of European Union law in terms of possible protection measures against the so-called patent trolls. In particular, the provisions of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights will be discussed. The possibilities of counteracting the phenomenon of patent trolling in court proceedings before the Unified Patent Court provided for in the Agreement on the Unified Patent Court (2013/C 175/01), being part of the so-called the system of the European Unitary Patent. In addition to the analysis of regulations, the judgments of the European courts regarding this issue will also be presented. The analysis of EU regulations and jurisprudence is supposed to be an attempt to answer the question whether current regulations are sufficient for the threat of patent trolling in Europe.

In this article it’s author describes legal solutions protecting internet users against copyright trolling. Firstly, it is shown that the force of copyright is not absolute. International regulations (such as Paris Act relating to the Berne Convention and TRIPS agreement) state that there is a possibility for member states to provide some exceptions to exclusive rights, which allow to use a copyrighted work under some specific conditions without asking for permission it’s author and without infringing copyright. Secondly, three most common “exceptions systems” are described — fair dealing, fair use-European type (on the Polish example) and American fair use. In summary the author of this article underlines that to find out if a use of copyright work in the Internet is indeed a copyright infringement, a detailed analysis of law provisions is necessary — meanwhile copyright trolls do not make such reflection before they make their claims.

With respect to a relatively young – new — term of ‘parental trolling’, an important problem arises in terms of parents’ liability, including penal liability, for publishing information relating to their children. Lack of clear regulations relating to the liability for actions classified as actions that form part of the constituent elements of parental trolling in the Penal Code calls for the need to classify individual actions with reference to circumstances, to the parent’s intention, and most of all to the published information. In terms of the Polish penal law, the fundamental question remains what constituent elements of which offences may be fulfilled in specific circumstances. Besides the legal classification of the offence, an equally important issue is that of the prosecution procedure. The paper aims to present what types of behaviour constitute elements of broadly grasped parental trolling, as well as to demonstrate, describe, and analyse the regulations of the Penal Code which provide the legal basis to hold a parent liable for publishing information classified as parental trolling. Furthermore, the paper also touches upon an equally crucial issue, namely who is authorised to represent a minor victim in court proceedings against their parent, as well as whether activities on behalf of the minor can be performed by the other parent, or whether such representation is excluded.

The aim of this article is to to compare the two constructions of copyright and patent trolling. Prima facie it may seem that both these phenomena are based on the very same basic — which is to claim the damages for the infringement of copyrights or patents. However, while analysing these constructions, it is possible to perceive both similarities and differences. At first, it is necessary to define notions of copyright and patent trolling and to analyze mode of action of both kinds of trolls. In this article, the author tries to answer the question, if it is possible to view every activity falling within the framework of the definition of trolling as an abuse of economic rights of copyright or patents. Afterwards, senders of demands of payment shall be characterized as well as the existence of the infringement by addressee’s behaviors. What is more, it is necessary to bring the role of law offices out. Finally, main difference between analyzed constructions will be indicated, revolving around the feeling of threat based not only on the economic foundation.

The main issue of this article is the current state of affairs concerning patent trolling in Great Britain. There is a possibility that this country might be the main focus of the activities of trolls in the future. Therefore, the description of the British patent system with a bit of a comparison with the American system hopefully can answer, why so far patent trolls were not fully successful in Great Britain. Moreover, the article briefly presents the most significant case so far in the matter of patent trolling in Great Britain which constitutes a precedent applying to standard-essential patents and FRAND rules. Furthermore, the problematic aspects of the establishment of a European patent with unitary effect as well as the Unified Patent Court arise. The new court may tempt patent trolls and simplify their actions. However, Great Britain does not remain idle. A new law has been introduced — Intellectual Property (Unjustified Threats) Act 2017. The purpose of the bill is to provide a protection against groundless threats of infringement proceedings.

Article 29 of the Act of 4 February, 1994 on Copyright and Neighbouring Rights establishes institution called “citing right”. This regulation shows conditions which must be met by person using somebody’s work within this legal construction. First of all the cite must be recognizable and distinctly marked in the work where it appears. The manner of editing article 29 by putting into it unsharp and undefined terms, causes that everytime when it is used, his scope needs individual interpretation, taking into consideration all connected circumstances. Such a situation creates basis to use or even to abuse citing right by copyright trolls. Copyright trolling is new phenomenon which development has proceeded gradually, together with Internet expansion. By this time it hasn’t neither his own legal definition, nor statutory regulation in Polish law. It consists in mass sending final payment demands which purpose is to gain copyrights protection by using binding regulations when such a protection doesn’t entitle. The juxtaposition of legal regulations concerning to citing right and copyright trolling phenomenon leads to explanation how first of them can be use by copyright trolls. In this context it is absolutely necessary to analyze: threats for unrestrained functioning citing right in practice, the problem how to use it according to law and how to stand against copyright trolls forcefully.