Varia

23 October 2020

The Supreme Court found today that the common courts rightly dismissed Dariusz Michalczewski’s claim against FoodCare spółka z ograniczoną odpowiedzialnością (a limited liability company) with its registered office in Zabierzów for payment of over PLN 21 million, on the grounds of the absence of infringement of the claimant’s personal rights by using the name ‘tiger’ as the name of energy drinks.

In a judgment announced on 23 October 2020, the Supreme Court dismissed the cassation appeal of Dariusz Michalczewski filed against the judgment of the Court of Appeals in Krakow of 27 November 2017, file no. I ACa 273/17. The case was examined by the Supreme Court under file no. III CSK 134/18.

[Facts of the case and judgments of the courts of first and second instances] In the case in which the Supreme Court ruled today, Dariusz Michalczewski sought the payment of compensation in the amount exceeding PLN 21 million from FoodCare, claiming that selling energy drinks under the name “Tiger” (already after the termination of cooperation with him based on promotional agreements) in the period from the end of October 2010 to the end of December 2011, FoodCare infringed his personal rights and trademark protection rights.

In the first instance, the Regional Court in Krakow, 9th Commercial Division, by the judgment of 12 October 2016, file ref. no. IX GC 911/13, awarded FoodCare the amount of PLN 2,401,961.37 (two million four hundred and one thousand nine hundred and sixty-one zloty thirty-seven grosz) to Dariusz Michalczewski, and dismissed the remainder of the claim. Only the Company filed an appeal against the judgment above. In the second instance, the Court of Appeals in Krakow, 1st Civil Division, by virtue of the judgment of 27 November 2017, file ref. no. I ACa 273/17, changed the challenged judgment in such a way that: it dismissed Dariusz Michalczewski’s claim in its entirety. The final judgment of the Court of Appeals in Krakow of 27 November 2017 was challenged by Dariusz Michalczewski with a cassation complaint.

The courts of first and second instance found the infringement of trademark rights to be unproven, whereas at the cassation stage the question of whether personal interests were infringed upon by using the “Tiger Energy Drink” name for a FoodCare’s product remained open and the cassation procedure focused on these issues.

The Supreme Court once again pronounced on issues relevant to practice as regards the criteria for classifying a certain value as a personal good, pointing out that the fundamental criterion is the inseparable link between the protected value as a good and the human individual; and the institution of personal rights itself may not be treated as a peculiar safety valve and may not be used to protect any value relevant to a given person. This is because the protection of personal rights is exceptional in nature and the catalogue of goods may not be treated extensively. And the mere commercialisation of a certain value may not constitute a premise substantiating the recognition of a certain value (nickname) as a good.

Hence, the Supreme Court concurred with the position of the Court of Appeals that the nickname is not protected under the regime of personal rights, because, unlike a pseudonym, it is an element which does not identify the person concerned personally but appears next to the first name and surname as a complement thereto, and therefore there can be no question of an inseparable link between the nickname and the person who adopted it.

In oral motives, the Supreme Court – concurring with the position presented by FoodCare in the proceedings and deemed correct by the Court of Appeals in Krakow – pointed out that the word “tiger” was a nickname of Dariusz Michalczewski, did not replace his name and surname, but appeared next to them, and therefore it does not enjoy legal protection due to personal rights.

The verdict of the Supreme Court means that Dariusz Michalczewski does not have the exclusive right to use the word ‘tiger’, and the fact that FoodCare chose the name ‘Tiger’ for its energy drink in 2003 did not constitute use of the former boxer’s ‘pseudonym’. Dariusz Michalczewski was engaged by FoodCare in 2003 to promote the products using a play on words – the identical wording of the product name and the boxer’s sport nickname was to reinforce the marketing message. In verbal reasoning, the Supreme Court stressed that the claimant is not solely and exclusively entitled to use the “TIGER” sign in public space. The word “TIGER” is not exclusively assigned to Dariusz Michalczewski.

The ruling delivered today is the first judgment concerning the period following the end of the cooperation between FoodCare and Dariusz Michalczewski, and may also be of crucial significance for other pending cases concerning various aspects of the dispute over the “Tiger” label. This is because it determines that the use of the name “Tiger” for energy drinks (invented by FoodCare) does not constitute an infringement of Dariusz Michalczewski’s personal rights. It should be remembered that at the end of 2010 Dariusz Michalczewski established cooperation with the Maspex Wadowice Group, which since then has been selling energy drinks under the formal brand name of “Dariusz TIGER Michalczewski”, which in transactions simply functions as “Tiger” drinks. At the same time, at the turn of 2010 and 2011, FoodCare was forced to change the name of its beverages (from “Tiger” to “Black”) and to discontinue the sale of “Tiger” beverages because Dariusz Michalczewski claimed that he is entitled to the name of “Tiger” energy drinks and has the right to decide who distributes them. However, the decision of the Supreme Court indirectly confirms FoodCare’s position that Dariusz Michalczewski has never acquired the rights to the name “Tiger” as a designation individualising FoodCare’s energy drink, the rights which FoodCare is entitled to.

The judgment of the Supreme Court is important, not only in the context of the whole dispute over the “Tiger” drinks, but also for the practice in other cases concerning the protection of personal rights.