Tribunal to ponder trademark law
The Polmos vodka makers' worst nightmare came true last week when President Aleksander Kwasniewski refused to sign an industrial property law that would have given liquor producers the right to register their trademarks abroad. Instead, Kwasniewski sent the law to the Constitutional Tribunal to decide the matter.
"The decision of the president saddens us very much," said Henryk Wnorowski, a Polmos Bialystok board member. "It will lengthen the whole process again."
Polmos was counting on the president's signature to end its conflict with food, beverage and spirit exporter Agros Holding, which is majority owned by French Pernod Ricard (see the Business Journal, July 24-30). Agros holds the trademark rights to more than 20 Polmos products abroad, including the lucrative Wyborowa and Zubrowka vodka brands. Polmos' attempt to regain that right has been the focus of a decade-long and still unresolved legal battle.
The law on industrial property would have turned the outcome of the conflict in Polmos' favor because it contained a crucial amendment to the existing trademark law. According to the amendment, a trademark registered in Poland or abroad by a foreign trading company or its heirs, such as Agros, is to be returned to the producers of the trademarked product if they had been producing that product at least 10 years before the bill goes into effect.
"I'm not surprised by what happened, but it is pathetic," said Adam Glapinski, a Solidarity Election Action (AWS) senator and the amendment's author.
Glapinski also said that the Senate unanimously backed the amendment, and that the bill passed through the Sejm despite resistance on the part of Democratic Left Alliance (SLD) deputies. At that point, everything depended on the president, who had until July 25 to sign the bill.
But "the president had doubts whether it (the amendment) is in line with the Constitution," said Jolanta Szymanek-Deresz, the head of the president's office. "A blanket decision in favor of the producers would mean expropriation without compensation." She added that if it could be determined on what legal basis the trademarks were being transferred to Polmos, it would be easier for the president to make a decision.
"It's surprising that political lobbying acts as well in Parliament as in court," Glapinski said. "The pressure was considerable, and there were a lot of signals from Agros that if it lost on the parliamentary stage, it would fight on the presidential one."
Glapinski said that while working on the amendment, the senators thought it was obvious who the trademarks belonged to and tried to resolve the problem accordingly. "What happened now is a crime but it actually happens very often," he said. "How was it possible (the president's decision) after our in-depth analysis (of the problem)?"
According to Glapinski, a powerful political lobby doesn't want the problem solved in favor of the Polmoses. "It's at the cost of Polish taxpayers," he said. "In taking such a decision, the president showed whose side he's on."
Szymanek-Deresz said the trademark case should have been solved earlier, "before the foreign trade companies were privatized. And not now, after 10 years."
The Polmoses, however, claim Agros failed to fully comply with a government decree issued in the 1970s which requred foreign trade firms to return trademarks.
Agros spokeswoman Elzbieta Kwiecinska did not comment on the president's actions, saying only that the company "welcomed the decision and (is) now waiting for the Constitutional Tribunal's decision."
"The statements regarding expropriation are unfortunate," said Janusz Michalski, president of Polmos Poznan. "There are a lot of words in it, but not much comes out of it."
Michalski said that if someone were able to prove that the amendment deprives Agros of its acquired rights, a paragraph in the Constitution stipulates that in cases where the public's interest is at stake, acquired rights can be limited. "And I can see public interest (here)," he said. Especially since trademarks are crucial to the privatization of the Polmos companies.
"The tribunal has a great deal of freedom and can take as long as six months to make a decision," Glapinski said, adding that it is hard to predict what that decision will be.
