How to assess whether a trademark in Poland is sufficiently distinct from other Polish trademarks?

To be registered with the Patent Office, a trademark should have sufficient distinctive features, i.e.

so-called primary distinctiveness, characterized by the fact that the sign is capable of distinguishing in commerce the goods for which it was applied for on the date the mark was filed.

The Patent Office in Poland examines the distinctiveness of the mark as applied for. In contrast, it does not examine how the mark is actually used in the course of business by the applicant.

Distinctiveness in Poland is assessed from the point of view of the relevant recipient of the goods or services. Of key importance in determining the relevant recipient of the goods is the model of the average consumer, adopted in EU case law, who is a reasonable, well (properly) informed, cautious and perceptive person.

This circle is formed in most cases by Polish consumers, but the target recipients of certain goods or services may also be professional consumers. This is due to the fact that the level of attention of the relevant circle of recipients in Poland when purchasing goods may vary depending on the type or value of the goods in question.

The subject of assessing the existence of distinctiveness is always the sign as a whole. Therefore, it is irrelevant with signs consisting of multiple elements that the individual elements are not distinctive, if the composite sign will be evaluated as a distinctive composition.

When assessing the distinctiveness of a trademark, therefore, it should be noted that the sign should be distinctive enough in itself to identify the goods and provide the buyer with the opportunity to make a choice using the sign, without having to determine the origin of the goods by a circuitous route (e.g., by looking for the name of the service provider).

Under Polish law, moreover, the interests of other entities engaged in the same business activity are taken into account. The granting of distinctiveness cannot serve the purpose of monopolization by one entrepreneur of signs belonging to the public domain.


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Trademark in Poland

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Attorney-at-law Joanna Susło, Ph.D.
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