Unlawful use of the reputation of another entrepreneur as an act of unfair competition

One of the most significant assets of each company is its reputation. Recognition of a brand and positive consumer associations allow for a continuous increase of market share. It is hard to imagine running a profitable business without a good reputation.

For this reason, you can observe the phenomenon of unlawful use of the competitor’s reputation consisting in misleading customers about the identity of the company. It also happens that the entrepreneur uses the reputation not of a specific competitor in a manner that is unlawful but uses the reputation of a specific region or geographical region unlawfully.

In the field of protecting the reputation of entrepreneurs, the basic role in the Polish legal order is provided by the Act on combating unfair competition. This regulation lists, as forbidden acts aimed at unlawful exploitation of another’s reputation, among others:

• the use of a business name that may mislead customers as to their identity by using the company, name, emblem, letter abbreviation or another characteristic symbol previously used by another undertaking (art. 5 of the Act);

• designation of an undertaking with the entrepreneur’s name that may mislead customers as to the identity with another undertaking (art. 6 of the Act);

• labelling goods or services with false or deceitful geographic indication, directly or indirectly the country, region or locality of their origin (art. 8 of the Act);

• indication of goods or services or its lack that may mislead customers as to the origin, quantity, quality, components, manufacturing process, usefulness, possible application, repair, maintenance or other significant features (art. 10 of the Act).

The above acts constitute civil law torts, which result in the injured party claiming primarily to remove the consequences of unlawful actions and to remedy the damage caused this way (compare art. 18 of the Act).

In accordance with the dualistic model of protection of fair competition adopted by the legislature, the Act provides in certain situations also for criminal liability for unlawful use of another’s reputation.

Pursuant to art. 24 of the Act, it is forbidden to copy the external image of the product or to introduce such products into the market if it creates the possibility of misleading customers as to the identity of the producer or product and at the same time damaging the entrepreneur. An indicated offense is punishable by a fine, restriction of liberty or imprisonment of up to 2 years.

• Judgment of the Court of Appeal in Warsaw of 27 July 2017, file no I ACa 445/16

• Judgment of the Court of Appeal in Białystok of 26 July 2015, file no I ACa 1028/14

• Judgment of the Supreme Court of 12 October 2006, file no III KK 58/06