Monika Wieczorkowska | In Principle

The amendment of 24 July 2015 to the Industrial Property Law doesn’t enter into force until 1 December 2015, but another amendment has already been published—dated 15 September 2015 and entering into force on 15 April 2016. Letters of consent are the most important change introduced by the first amendment, while the second amendment will revolutionise the system for obtaining protective rights to trademarks. The changes will affect the registration procedure and the grounds for lapse of protective rights.

Although in theory it is possible to register a trademark in the form of a single colour, in Polish practice such marks are vanishingly rare. Essentially, such protection is possible only if the applicant proves “secondary distinguishing power”—showing that the target customers for the goods clearly associate the colour with a specific company.

Recent EU case law shows that the owner of a trademark refiling the same mark in order to evade the requirement to use the mark should expect to be accused of acting in bad faith and required to prove actual use of the mark, even if less than 5 years has passed since registration of the mark.