Scope of legal assistance
RGW provides legal advice services to entrepreneurs in the field of modern technologies and telecommunications.
We offer our Clients comprehensive legal services taking into account the specificity of the developing IT sector, various forms of internet and telecommunication business, starting with choosing the most appropriate form of business activity and determining legal requirements for a given type of services through intellectual and industrial property consultancy, legal assistance in current business operations, preparation of agreements with contractors in particular licensing agreements, representation before court and offices, including in contacts with regulators of a given market.
We help entrepreneurs operating on the Internet to adapt to the requirements for personal data protection, we prepare website service regulations and advise on e-commerce.
Area of activity
Running an innovative business (including popular start-ups) requires taking number of decisions concerning the form of activity at the stage of the start of a business.
Forms of economic activity
It is worth considering whether running a sole proprietorship is enough for that purpose to (or being part of the civil partnership) or whether it would be reasonable to create a commercial law company.
Commercial law companies include partnerships (general partnership, professional partnership, limited partnership, limited joint-stock partnership) and capital companies (limited liability company and joint-stock company).
Each of these forms of activity has its advantages and disadvantages and the choice of a form suitable for a given undertaking requires a comprehensive analysis of current needs but also development plans for the future.
Obtaining financing sources is another important issue in the modern technologies industry. As part of the investment process, professional legal assistance is required for both investor and the start-up.
In particular, at the investment preparation stage, legal advice includes designing the entire process, due diligence, substantive support during negotiations and determining the terms of the transaction.
A very important element is the preparation of an investment agreement adjusted to the given transaction, taking into account the provisions specific to investments in innovation as well as protecting interests of the represented party in the event of various scenarios in the future.
Crowdfunding is worth mentioning when it comes to various forms of financing investments, I.e. raising funds from investor community e.g. using online crowdfunding platforms.
Legal advising includes the preparation of the process of raising funds, creation of a company, legal support concerning launching of an internet platform and preparation of principles of the collection, preparation of terms and investment agreements, handling of the investors’ joining the company and their withdrawal from the company.
Legal services for entrepreneurs
RGW offers support to entrepreneurs from the new technologies and communication industry with respect to:
- corporate law
- civil law, including contract law,
- intellectual and industrial property rights,
- protection of personal data,
- labour law
- competition law and law on combating unfair competition,
- criminal law including economic criminal law.
Industrial property is currently one of the company’s valuable assets. Industrial property rights may be protected at national, European and international level.
RGW helps its clients understand the protection principles and requirements that must be met in order to obtain protection.
RGW provides legal advising such as:
- legal opinions concerning the protection of inventions, utility and industrial designs, trademarks, geographical indications and topography of integrated circuits;
- representation before competent national, European and international bodies and authorities in matters related to the protection of trademarks (registration, raising objections),
- analysis of potential claims (including claims for damages) related to unauthorised use of industrial property,
- drafting agreements concerning trade of industrial property rights,
- legal representation in civil proceedings,
- representation of aggrieved and defence of suspects/accused in criminal proceedings including cases concerning counterfeit goods.
Topography of an integrated circuit is a solution consisting of a spatial arrangement of elements in any way of which at least one is an active element for all or part of the integrated circuit connections.
Polish industrial property law
Protection of industrial property is regulated in the Act of 30 June 2000 – Law on industrial property
By obtaining a patent, the entity entitled to it acquires the right to exclusive use of the invention in a profitable and professional manner in the territory of the Republic of Poland. The patent is granted by the Patent Office in special proceedings.
A patent may be granted for inventions, irrespective of the area of technology, which fulfil the following conditions:
- they are new, which means that they cannot be part of the state of the art –the invention cannot be previously made available to the general public or filed in other patent procedure;
- they have an inventive level – in the opinion of an expert, the invention cannot be resulting obviously from the state of the art;
- they are suitable for industrial use – according to the invention, a work can be obtained or a method used (in technical terms) in any industrial activity.
The duration of the patent protection is 20 years from the date of filing the patent application with the Patent Office.
The equivalent of a patent in the case of utility models are protection rights for utility models that allow the entitled entity to exclusively use the utility model in a profitable or professional manner throughout the territory of the Republic of Poland. The rights in questions are granted by the Patent Office in separate proceedings.
A utility model is a new and useful solution of technical nature concerning the shape, construction or composition of an item with a fixed item.
The duration of the protection right is 10 years from the date of filing the utility model application with the Patent Office.
The industrial design is a new and individual form of the product or its part, attributed to it in particular by lines, contours, shapes, colours, texture or material of the product by its ornamentation.
An industrial design may be considered new if (in simplified terms) the design has not been made available to the public by using it, displaying or otherwise prior to filing application for registration of the design.
An industrial design may be considered to be of an individual character if the overall impression on an informed user differs from the overall impression made on him by the design previously made publicly available.
Registration rights can be obtained for industrial designs by which the entitled entity obtains the right to exclusive use of the industrial design in a profitable or professional manner in the entire territory of the Republic of Poland. That right is granted for 25 years from the date of filing the application.
The proper protection of a trademark is essential to maintain its individualising function.
A trademark can be any sign that can be represented graphically if the sign allows for distinguishing the goods of one company from the goods of another company.
The legislator indicates the following as examples of a trademark:
- a word,
- a drawing,
- an ornament,
- a colour composition,
- a spatial form,
- a melody of other sound signal.
A protection right which ensures that the entitled entity has the right to exclusive use of the trademark in a profitable or professional manner is granted to a trademark.
The duration of a protection right is 10 years from the date of filing of the trade mark in the Patent Office. However, at the request of the right holder, the protection right may be extended for further ten-year periods.
Geographical indications are word signs referring directly or indirectly to the name of a place, city, region or country (territory) that identify a products as originating from that territory, if the specific quality, good reputation or other characteristics of the product are attributed primarily to the geographical origin of the goods.
It is possible to obtain protection for a foreign geographical indications only if the indication is protected in the country of the origin of that indication.
Registration rights are grated to a geographical indication. This form of protection is indefinite and runs from the date of entry into the register of geographical indications kept by the Patent Office.
A geographical indication for which a registration right was granted, may not be used in the territory of the Republic of Poland by persons whose goods do not meet conditions under which the registration right was granted.
Topography of an integrated circuit is a solution consisting of a spatial arrangement of elements in any way of which at least one is an active element for all or part of the integrated circuit connections.
Registration right is granted to the topography of integrated circuit, which allows the entity entitled to exclusively use the topography in a profitable or professional manner in the entire territory of the Republic of Poland.
The industry of modern technologies and creative industry function dynamically due to the protection of the individual creativity of those involved in the various projects i.e. protection of copyright and related rights.
RGW in the field of copyright and related rights offers in particular:
- preparation of legal opinions concerning the possibility of copyright protection;
- preparation of analyses of possible copyright infringement with an indication of necessary remedies;
- comprehensive preparation of contracts concerning copyright trading;
- representation of aggrieved parties in relation to infringement of copyright in civil proceedings;
- representation of aggrieved persons in relation to criminal copyright infringements in preparatory and court proceedings;
- representation of entities accused of copyright infringement in civil and criminal proceedings.
The basic legal act regulating copyright is the Act of 4 February 1994 on copyright and related acts.
A work – i.e. the subject of copyright – is any indication of creative activity of an individual character, fixed in any form, regardless of the value, purpose and method of expression.
The legislator recognised in particular the following as the subject of copyright:
- works expressed in words, mathematical symbols, graphic signs (literary, journalistic, scientific, cartographic and computer programs);
- art works;
- photographic works;
- lute works;
- works of industrial designs;
- architectural, architectural-urban and urban works;
- musical and verbal-musical works;
- stage, stage-music, choreographic and pantomime works;
- audiovisual works (including film).
The author’s copyright consists of two types of rights:
- author’s personal rights – they protect the author’s unlimited connection with the work, unlimited in time and is not subject to renunciation or sale, in particular to:
- authorship of the work;
- designation of the work with the name or pseudonym or to making it available anonymously;
- inviolability of the content and form of the work and its fair use;
- deciding on the first making the work available to the public;
- supervision over how the work is used.
- author’s economic rights – they protect the creator’s right to exclusive use of work and to dispose of it in all fields and to remuneration for using the work.
Depending on the type of rights one has, the legislator provides different means of protection in the event of copyright infringement (or threat of infringement):
- Protection of personal copyright
- claim to cease others’ activities that pose a threat to personal copyright;
- claim to remove the consequences of infringement of personal copyrights, in particular by making a public statement of an appropriate content and form;
- claim for compensation or payment of a certain amount for a social purpose indicated by the creator if the personal copyright was infringed in a culpable manner.
- Protection of proprietary copyright
- claim to cease infringement;
- claim to remove effects of the infringement;
- claim to remove damage caused on general rules or payment of the amount double (or triple in case of culpable infringement) the remuneration which would be due to the rightholder in the event of consent to the use of work;
- claim for the benefits obtained;
- claim for making a statement in the press of an appropriate content and form;
- claim to make part or all of the court’s verdict issued in the infringement case public.
It is necessary to distinguish between copyright and related rights. Related rights include:
- rights to artistic performances such as: activities of actors, reciters, conductors, instrumentalists, vocalists, dancers, mimes and other persons who contribute creatively to the creation of the performance;
- right to phonograms and videograms;
- broadcasting rights which include the exclusive right of radio and television organisations to dispose of and use their broadcasts;
- rights to first publications and scientific and critical publications.
Particularly gross infringements of copyright or related rights are offences punishable by severe penalties such as imprisonment.
The legislator recognises the following behaviours as prohibited acts:
- misappropriation of authorship or misleading as to the authorship of the entire or part of another person’s work or artistic performance;
- dissemination of another person’s work or artistic performance without providing the name or nickname of the creator’
- public distortion of the work, artistic performance, phonogram, videogram or broadcast;
- infringement of another person’s copyrights or related rights, in a manner other than indicated above, in order to achieve financial gain;
- dissemination of another person’s work or subjects of related rights without permission or contrary to his conditions;
- fixation or reproduction for distribution of another person’s work or subject of related rights without permission or contrary to his conditions;
- trading in items that are carriers of works unlawfully multiplied or disseminated;
- manufacturing of devices or their components intended for unauthorised removal or circumvention of effective technical safeguards against performing, copying or reproduction of works or subjects of related rights or trading or advertising or the possession, storage or use of such objects;
- preventing or obstructing the exercise of right to control the use of a work, artistic performance, phonogram or videogram or refusing to give information provided by law.
RGW advises on the implementation of appropriate personal data protection measures that meet the requirements of the GDPR.
GDPR is Regulation (EU) 2016/579 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
The GDPR entered into force on17 May 2016 and became applicable as of 25 May 2018.
The GDPR applies to all entities processing personal data in an entirely or partially automated manner and in a manner other than automated processing of personal data that are part of the data set or are supposed to be part of the data set.
Insofar as an entrepreneur from a Member State processes data, regardless of whether the processing takes place in the EU, he is bound by the provisions of the Regulation.
This applies to both, the data controller and the entity processing data on its behalf.
Article 5 of the GDPR introduces the main principles that apply to processing of personal data.
- lawfulness, fairness and transparency,
- purpose limitation,
- data minimisation,
- storage limitation,
- integrity and confidentiality (security),
At the time of collecting data, the controller should provide natural person with information including:
- identity and contact details or identity and contact details of the representative or contact details of the data protection officer,
- the purpose of personal data processing and the legal basis for it,
- legitimate interests pursued by the controller or by a third party (if this is the basis for processing),
- information on recipients of personal data or categories of recipients, if any,
- possibly information about the intention to transfer personal data to a third country or international organisation,
- the period for which personal data will be stored and, when this is not possible, the criteria for determining this period,
- information about the right to request from the controller access to personal data concerning the data subject, their rectification, erasure or limitation of processing or about the right to object to the processing, as well as the right to data portability,
- information about the right to withdraw consent at any time without affecting the lawfulness of processing based on consent before its withdrawal,
- information on the right to lodge a complaint with a supervisory authority,
- information whether providing personal data is a statutory or contractual requirement or a condition for concluding contract and whether the data subject is required to provide it and what are possible consequences of not providing data,
- information on automated decision making, including profiling.
Natural persons whose data is processed have the following rights:
- the right to access data and information,
- the right to request rectification and supplementation of data,
- the right to object to data processing,
- the right to data portability,
- the right to erase data.
The GDPR abolishes the obligation to register data sets but introduces the obligation to maintain a record of data processing activities.
The record should be kept in a written form, including in the electronic form. The controller is required to provide access to the record upon request of the supervisory authority.
Maintaining a record is not obligatory for entrepreneurs who employ fewer than 250 employees unless the processing may result in a risk to the rights or freedoms of data subjects, the processing is not occasional, or the processing includes special categories of data or personal data on convictions and offences.
The data processing record should contain:
- the name and contact details of the controller and, where applicable, the joint controller, the controller's representative and the data protection officer; the purposes of the processing; a description of the categories of data subjects and of the categories of personal data;
- the categories of recipients to whom the personal data have been or will be disclosed including recipients in third countries or international organisations;
- where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation
- where possible, the envisaged time limits for erasure of the different categories of data;
- where possible, a general description of the technical and organisational security measures.
Lawfulness of personal data processing depends on the existence of at least one of the premises mentioned in art.6 of the GDPR.
Processing is lawful if:
- the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
- processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
- processing is necessary for compliance with a legal obligation to which the controller is subject;
- processing is necessary in order to protect the vital interests of the data subject or of another natural person;
- processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
- processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
For the infringement of the provisions on the protection of personal data, the GDPR provides for a sanction in the form of an administrative fine, which, depending on the type and severity of the infringement, may amount:
- up to EUR 10,000,000, or in the case of an undertaking, up to 2 % of the total worldwide annual turnover of the preceding financial year, or
- up to EUR 20,000,000.00 or in the case of an undertaking, up to 4% percent of the total worldwide turnover.
Administrative fines depend on the circumstances of each individual case such as the nature, gravity and duration of the infringement, the number of data subjects affected and the level of damage suffered by them, the intentional or negligent character of the infringement, any action taken by the controller or processor to mitigate the damage suffered by data subjects, the degree of responsibility of the controller or processor, any relevant previous infringements by the controller or processor, the degree of cooperation with the supervisory authority, the categories of personal data affected by the infringement, the manner in which the infringement became known to the supervisory authority, adherence to approved codes of conduct or approved certification mechanisms, any other aggravating or mitigating factor applicable to the circumstances of the case.
The supervisory authority – in Poland the President of the Office for Personal Data Protection – has the following corrective powers:
- to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of the Regulation,
- to issue reprimands,
- to order the controller or the processor to comply with the data subject's requests to exercise his or her rights,
- to order the controller or processor to bring processing operations into compliance with the provisions of the Regulation,
- to order the controller to communicate a personal data breach to the data subject,
- to impose a temporary or definitive limitation including a ban on processing,
- to order the rectification or erasure of personal data or restriction of processing,
- to withdraw a certification.
As part of the intellectual and industrial property law practice, RGW provides legal assistance regarding the most common types of contracts in the modern technology and media industry i.e. licence agreements.
Our services include:
- negotiating agreements with contractors,
- preparing draft license and sub-licence agreements in the field of copyright and related rights, trademark law and industrial property rights,
- preparing legal opinions and drafting IT contracts for the creation and exploitation of computer programs,
- preparing agreements for sharing and using the company’s know-how with particular emphasis on confidentiality clauses,
We also offer negotiating, drafting and preparing legal opinions of various types of contracts related to the client’s business. The undertaken actions are always preceded by a thorough analysis of the specifics of a given business and the solutions are tailored to individual needs.
RGW represents clients before courts and administrative bodies in various cases that entrepreneurs from the creative, modern technologies or telecommunications sector may face in the course of conducting business.
In the field of industrial property law, RGW represents clients before the competent court and authorities:
- in registration and adversarial proceedings before the Patent Office of the Republic of Poland (UPRP) and before the German Patent and Trademark Office (DPMA),
- in proceedings before the General Court and the Court of Justice of the European Union in the field of protection of exclusive rights,
- in administrative and court proceedings related to industrial property law,
- in proceedings before the EU Intellectual Property Office (EUIPO),
- in criminal proceedings, in petty offences cases and in customs proceedings.
We represent clients before competent common courts in cases concerning civil law (including disputes related to concluded contracts) copyright and related right, press law or personal rights and in the case of criminal proceedings – at the stage of preparatory and court proceedings before courts of all instances (including the Supreme Court).
We also try to negotiate out-of-court amicable settlements of disputes on behalf of our Clients and if the arbitration clause is in force – we represent the Client before the arbitration tribunal.
We also take into account the specifics of a given industry in which – as in the telecommunications industry – there are special rules of conduct. We have experience in representing entities from the telecommunications industry in administrative proceedings before the President of the Office of Electronic Communications, including cases concerning the entry in the register of telecommunications entrepreneurs, failure to provide or provision of incomplete information about the infrastructure, turnover or conducted operations.
RGW advises also on issues related to legal aspects of databases.
Databases may on the one hand be protected as works within the meaning of copyright and on the other hand, be subject to sui generis protection under the Act on the protection of databases.
A database can be a work if it is a manifestation of creative activity of an individual character. According to Art. 3 of the Act on copyright and related rights, databases that meet the characteristics of a work are subject to copyright even if they contain unprotected materials, provided that the selection, layout or combination in databases is creative, without prejudice to the rights to the works used.
However, regardless of copyright protection, databases are protected under the Act on database protection.
A database within the meaning of the above acts is a set of data or any other materials and elements collected according to a specific method, individually available in any way, including electronic means, requiring a significant investment in quality or quantity in order to prepare, verify or present its content.
The protection is granted to the database producer and includes the exclusive and transferable right to download the data and secondary use it in whole or in significant part as to the quality or quantity.
The protection lasts for a period of fifteen years following the year in which the database was created.
The Act on database protection provides for its own regime of civil law claims in the event of a breach of protection rights. The rightholder may request:
- to cease the breach,
- to remove the effects of the breach,
- compensation for damage caused on general principles or by payment of a sum of money in the amount corresponding to double, and in the event the breach is culpable – triple the appropriate remuneration which at the time of its pursue would be due for rightholder’s consent to use the database,
- receiving the benefits obtained,
- a single or multiple statement in the press of an appropriate content and form or making public part or all of the court’s decision issued in the case, in the manner and to the extent specified by the court.
Unauthorised use of the database by downloading data or secondary use, in whole or in significant, as to the quality or quantity, part of the database without permission or contrary to its conditions and in order to achieve benefits, constitutes an offence punishable by a fine.
RGW offers also legal assistance for entrepreneurs in an e-commerce sector.
Legal assistance concerns a whole range of legal issues related to running an online store and concluding distance contracts.
We follow the development of law, both domestic and EU, on issues relevant to the constantly growing e-commerce industry.
Our services include:
- comprehensive or sectoral legal audit of the business (e.g. regarding its compliance with law on protection of consumers and competition),
- legal assistance in the field of unfair competition law,
- preparing and reviewing regulations, general terms and conditions of contracts, templates of contracts, withdrawal forms,
- advising on personal data protection law and ensuring compliance of business with the GDPR and Polish Act on personal data protection,
- legal assistance related to the protection of the entrepreneur’s personal rights, including in cases concerning online slander and portals containing reviews of internet users,
- representation in disputes with other entrepreneurs and consumers,
- representation before competent administrative bodies (including the President of the Office of Consumer and Competition Protection in cases concerning prohibited clauses or unfair market practices),
- legal representation in civil and criminal cases before common courts of all instances, the Supreme Court and administrative courts.