The basic condition for successfully invoking a plea of non-use of an earlier trademark in opposition proceedings is the lapse of a time period specified by law. This period is 5 years under Polish law and is calculated retroactively from the filing date of the opposing trademark application.
The trademark XXX was filed for registration in Poland by entity A on August 1, 2023. Entity B files an opposition to the registration of this trademark, indicating as the basis of the opposition the mark YYY, for which the right of protection was granted on March 2, 2017. In response to the opposition, subject A raises an allegation of non-use of mark YYY. In order for the allegation of non-use of the YYY mark to be successfully raised, the mark must not be used between August 1, 2017 and August 1, 2023.
In addition, it should also be pointed out that in Poland, an allegation of non-use of a mark cannot be successfully invoked if a five-year period has not yet elapsed since the date of registration. In such a case, the objector does not need to provide evidence of actual use of the mark.
It should also be noted that it is not necessary that the use of the mark cover the entire five-year period. A period long enough to be considered actual use of the mark will be considered sufficient.
The allegation of lack of actual use of the earlier mark, raised in opposition proceedings, may be rebutted if the right holder demonstrates that there were circumstances that would justify such lack (including, but not limited to, flooding, earthquake, warfare, as well as import restrictions and other government requirements.).
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Trademark in Poland