What are trademarks?
Each of us encounters a wide variety of trademarks every day. They are visible in stores on products, in street advertisements, and in those not-so-welcome interludes of the film we're watching – television and online commercials. This seemingly common phenomenon, to which we have become accustomed due to its prevalence, allows us to forget that issues related to the use of trademarks are regulated by law. Legal issues related to trademarks are regulated by international law, European Union law, and national law, in particular the Act of 30 June 2000 – Industrial Property Law (Journal of Laws of 2001, No. 49, item 508, as amended; hereinafter also referred to as the Industrial Property Law). Such extensive legal regulations stem from the need to protect trademarks on a global scale – after all, goods marked with the same trademark can be purchased in countries around the world.
A mark should be sufficiently original to allow the identification of the product's origin (i.e., most often its manufacturer). Identifying the product's origin should sufficiently distinguish it from goods from another manufacturer. According to the definition contained in the Polish Act, a trademark can be any mark that distinguishes the goods of one company from those of another and that can be presented in the trademark register in a manner that allows for the unambiguous and precise determination of the subject of the granted protection. This means that a trademark must possess abstract distinctiveness—that is, distinctiveness that allows the consumer to recognize the mark regardless of the product marked with it. The Act itself provides only a sample list of marks that can be classified as trademarks. For example, the Act lists: numbers or letters that do not constitute words, a drawing, an ornament, a color composition, a three-dimensional form, including the form of the product or its packaging, a melody or other audible signal.
What types of trademarks are there?
The types of signs that can constitute a trademark can be divided according to the senses used to perceive them. This division involves distinguishing conventional and unconventional trademarks. Conventional trademarks primarily include word marks and figurative marks. Word marks, perceived through the senses of sight and hearing, are characterized by graphic representability, independence, and uniformity. In trade, word marks most often appear in the form of numbers, letters, and slogans, which are presented as a designation consisting of one or more words. Figurative marks, on the other hand, are signs recognizable solely by the sense of sight. A figurative mark is a fanciful mark presented in an abstract form, concrete-figurative marks (e.g., a simplified graphic form), graphic arrangements of letters, numbers, or words, and monograms. Combination marks (logotypes) are also distinguished. They combine elements of both word and figurative marks. Combination marks, being the most universal and readily understood by consumers, are widely used in business. They allow the buyer to quickly and easily recognize the origin of the goods, which is usually intended to encourage them to purchase them.
Trademark protection law
Trademark protection is granted upon request by an entity entitled to it in administrative proceedings. This is an exclusive right and allows for the commercial or professional use of the trademark only by the entity that has obtained the protection. The scope of protection covers specific goods and services marked with the trademark. It is in the interest of the entity using the trademark to file an application for trademark protection as soon as possible to ensure legal protection for future commercial use of the trademark.
Territorial protection
A crucial issue is the territorial coverage of the trademark protection granted. Often, entities wishing to register a trademark would like to do so worldwide. While theoretically possible, in practice it can be very difficult and costly. Registering a trademark with the Polish Patent Office guarantees protection only in Poland. Because Poland is a member of the European Union, we also have the option of registering a trademark through the European Union Intellectual Property Office (EUIPO). This registration provides protection throughout the European Union.
If a trademark is registered in a country other than Poland and not a member of the European Union, it must be registered in the specific national register of the selected country. It is also possible to register it with the World Intellectual Property Organization (WIPO). Such an application can be filed through the Polish patent office. Unfortunately, trademark registration through WIPO is not the global equivalent of EUIPO registration. WIPO forwards the received application to the individual patent offices in the countries specified in the application.
Liability of the trademark infringer
If our trademark protection rights have been infringed, we may take specific legal action. The entity whose trademark has been infringed may, above all, demand that the infringement cease and desist, any unjustly obtained benefits be returned, and any damages be redressed. The regulations provide, among other things, for the redress of damages by payment of a sum equivalent to the license fee or other appropriate compensation.
Registering a trademark allows you to regulate ownership issues. The protection certificate specifies the scope of protection for the trademark. This helps prevent situations in which a dispute regarding trademark ownership may arise. Registering a trademark provides full legal protection and effectively combats acts of unfair competition. In summary, registering a trademark is very beneficial for any entrepreneur who uses trademarks in their business and cares about their protection.
On behalf of the entire editorial team, thank you very much for reading this post. We invite you next week for another post on the legal aspects of blockchain technology. This time, we will present our commentary on the position of the Polish Financial Supervision Authority (KNF) of December 10, 2020, regarding the issuance and trading of cryptoassets.
