A Rolex for 25 złoty?
So, what could possibly be wrong with Paweł finding a bargain for his wife? If Ela's happy, he's happy. The answer, however, is that everything Paweł purchased was counterfeit. (I knew he paid too much for the Nikes.) Worse, the sale of such counterfeit goods, otherwise known as "knockoffs," is illegal. Of all the EU candidate countries, we have the toughest copyright and trademark laws on the books. Copyrights protect artistic creations, such as literary works, music, videos, etc. Trademarks protect a company's logo, emblem and industrial design. The law is not the problem. The problem is enforcement.
The Copyright Act imposes stiff prison sentences of up to five years on vendors engaged in the sale of knockoffs. Lucky for Paweł, the same doesn't apply to the "innocent" purchaser. Moreover, the same law permits the owner of the copyright to sue the vendor for up to three times the amount of any lost profits. The copyright is valid and enforceable for up to 70 years following the death of the original author or performer, and is transferable to his or her heirs. Additionally, Poland is a signatory to various international agreements on the protection of copyrights, including the Berne Convention, by which we agree to respect copyrights originating outside its borders. Trademarks are likewise protected by the Patent Office. A trademark can be registered with the Patent Office for a period of 10 years, with the right of renewal. Moreover, Poland is a signatory to the Madrid Agreement, by which member countries agree to respect the trademarks registered in each country.
Despite these tough penalties, enforcement is haphazard. On a recent visit to the Stadium (for research purposes only), I was somewhat amused to hear more than one vendor declare that his or her CDs or shoes were true originals. Someone yelled "Police!", upon which every vendor immediately pulled out a straw mat and covered up the "true originals". Two police officers walked by, but they seemed oblivious to all the straw mats that were suddenly being offered for sale.
So, what do you do if you are the country manager for Sony or Virgin Records and you suddenly come across "your" CDs for sale on the street for zł. 10? In simplest terms, run to the nearest courthouse, file suit and seek an injunction against the vendor. Article 80 of the Copyright Act requires the judge to rule on your motion for an injunction within three days. Barring an appeal the authorities may then take immediate action to confiscate the illegal CDs. Once the vendor is put out of business, you can then proceed with your law suit.
Now, for those of you who watch the weekly television programme "Na Granicy," you will no doubt take issue with my assertion that the problem is not the law, but rather enforcement. Granted, the border guards and customs agents portrayed on the programme are dedicated civil servants and extremely good at finding counterfeit goods and other illegal contraband. Before I saw this programme, I never imagined that one could conceal 23 cartons of cigarettes in a car tyre. The problem, however, according to "Progress Towards Accession", released last month by the EU Commission, is that the border guard is currently understaffed by 30%. Until such time as this shortfall is rectified, gaps in surveillance will continue.
If a shipment of "Adidas" shoes, for example, is suspect, the customs officials are empowered to hold the shipment for up to 72 hours. How do they determine if they have the real shoes or not? Most likely, the customs officials will call Adidas for assistance. In order to protect its trademark, Adidas should have someone on call to travel to the border point where the shoes are being held in order to determine the origin of the shoes within the 72-hour time period. Failure to respond within 72 hours may leave the customs officials with no choice but to release the shipment. In other words, befriend the customs officials, educate them on your trademarks and give them your telephone number. This procedure is not codified in any law, but is rather based on practical experience and common sense.
In case any of you are wondering where Paweł intends to do his Christmas shopping this year, he's not talking. The Gucci bag broke one month after he gave it to Ela, the Rolex lasted a week, the Nike shoes didn't fit and the Channel smelled like
Paul Fogo is with Miller, Canfield, Paddock and Stone.
