MROCZNE STRONY NAJNOWSZYCH FORM WALKI Z PODROBIONYMI TOWARAMI I PIRACTWEM MARKOWYM – ZASĄDZANIE ODSZKODOWAŃ, PENALIZACJA CZY SAMOREGULACJA?
THE DARK SIDES OF THE NEWEST FORMS OF FIGHT AGAINST COUNTERFEIT GOODS AND BRAND PIRACY – AWARDING DAMAGES, PENALISATION OR SELF- REGULATION?

Summary/Abstract: The article deals with the methods of combating the trade in counterfeit goods and brand piracy. In the current situation, especially when reports about the growing wave of trade in counterfeit goods and brand piracy also fully apply to the Polish market, there is no doubt that all the authorities operating in Poland whose scope of tasks includes activities in the field of preventing and combating such violations should actively contribute to the implementation of plans and initiatives undertaken at the EU level, referred to in part IV of this article. For many years, the European Commission has been generating various documents that are worth using, but when it comes to concrete methods – the Commission has for years been constantly “announcing” the future creation of a “toolbox” to fight this type of infringement. The article (in parts V and VI) also mentions “self-regulation” – as a new method of combating counterfeiting and brand piracy – in the light of actions taken at the EU level. The basis of this new method is the document referred to as the “Memorandum of Understanding on the Sale of Counterfeit Goods via the Internet” of May 4, 2011 (the 2016 version is currently in use). This document is defined as the voluntary agreement supported by the European Commission between the largest online platforms, suppliers, sellers and rights owners of goods whose counterfeit and pirated versions are sold on the Internet. The article presents the assumptions and principles of the functioning of this agreement in the field of “self-regulation” consisting in the cooperation of the signatories of this agreement, in particular based on the exchange of information on cases of violations and procedures to counter them (as part of quarterly meetings of these entrepreneurs “under the auspices of the European Commission”). The descriptions of the functioning of this agreement presented in the periodical documents published by the Commission contain both positive and negative evaluations. In particular, the article mentions that a large group of rights holders have pointed out that many offers of counterfeit goods are still available on online markets. These signatories consider that cooperation and information exchange with online platforms are insufficient for the commitments made under the “self-regulation” agreement and that the level of counterfeit goods is still too high. Descriptions of the agreement’s principles of operation and of assessments contained in the published documents prompted the author to pose numerous questions regarding the fundamental issues requiring clarification if the agreement is to continue to be in power in its current form. One of the questions concerns the verification by the European Commission (under the “auspices” of which this agreement is functionning) of the content of information exchanged by the signatories of the agreement from the point of view of compliance with the antimonopoly law which prohibits competition-restricting agreements.

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