Uzyskanie charakteru odróżniającego przez znak towarowy poprzez używanie (przesłanki, data i dowody nabycia)

Abstract

The subject of this commentary – the acquired distinctive character of a trade mark as a consequence of its use – is a very practical issue. Especially with regard to the grounds, dates and proof of use necessary to establish the acquired distinctive character of a trade mark which was devoid of inherent distinctive character. The Author provides an interpretation of the appropriate regulations laid down in the Industrial Property Act of 2000. He also takes into consideration the newest judgments of the EU Court of Justice based on a reference for a preliminary ruling. Discussing the criteria for establishing the acquired distinctiveness and the methodology for its correct evaluation. Another issue addressed is the evaluation of the provision of the Polish law where the distinctive character of the trade mark was acquired as a consequence of the use of that trade mark after the date of its application for registration. Article 165 (1) (3) of the Industrial Property Act, which addresses the issue of acquired distinctiveness, raises considerable doubts as to its accordance with EU law. Therefore, the Author suggests that a reference for a preliminary ruling should be raised. However until such a judgment is made the current meaning of the said Article needs to be applied. It should, nevertheless, be subject to very strict interpretation, especially with regard to trade marks which were applied for registration under the currently applicable law.