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

Abstrakt

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