Designation of a business establishment as the object of protection under the act on combating unfair competition

The dispute concerned unlawful use by an ex-employee of the business’s designation and circulation of  false misleading information about her former employer.

The plaintiff was a proprietress of an establishment providing hairdressing and beauty treatment services where the defendant was initially employed as a hairdresser. Still during the term of her employment contract, the defendant went into business providing the same services as those of the plaintiff – under almost identical designation. As a consequence, internet browsers were displaying two web pages – one belonging to the plaintiff, another one belonging to the defendant. To create the page, the defendant used the files being the property of the plaintiff, and the contents of information grossly threatened the interests of the plaintiff. She was informing the existing and potential clients of the plaintiff among other things about: the motive for establishment of a new business (according to her, being continuation of activity started with the plaintiff) and transformation of previous activity. In the opinion of the plaintiff, information given by the defendant was false and aimed at taking over the existing clientele of the plaintiff which actually occurred to a large extent and led to a reduction in income of the plaintiff.

The Appeals Court found that the information placed on a web page by the defendant had violated the rules of competition and threatened the interests of the plaintiff, and her starting activity under a misleading name absolutely violated subjective right of the plaintiff to the company name. Considering that the plaintiff had a protective right to the verbal graphic mark making an element of her designation the opinion was not changed by the fact that the defendant had supplemented the company name with her own surname. Because there was still the risk of confusion both on the verbal phonetic, and visual plane.

In accordance with the view of the Court, an act of unfair competition under article 5 of the unfair competition act [UCA] is the fact of misleading the public by improperly naming an entrepreneur as well as giving a name to a company which adopts distinguishing identifying elements of another entrepreneur. In this case, the Court found that articles 5 14 of the UCA had been violated but added that the autonomous basis for a claim could also be article 3 thereof (decency clause).

  • Judgment of the Appeals Court in Cracow of 19th April 2016, file reference number I ACa 11/16

Leave a Reply

Your email address will not be published.