POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
7. Intellectual Property 7.1 Patents
7.2 Trade Marks A trade mark is any mark capable of distinguishing the products (or services) of one entity from those of another, and enables determination of the scope of protection in a clear and precise manner. A word (including a name), picture, letter, digit, colour, object (eg, the shape of a product or its packaging) or sound may constitute a trade mark. Upon registration, trade mark protection rights last ten years and may be extended for subsequent ten- year periods, provided that the fee is paid. However, a protection right over a trade mark expires (and the trade mark is eligible for invalidation) if the registered trade mark is not in genuine use within five years of the date protection was granted. Protection Rights To obtain a protection right, a relevant application describing the trade mark and listing the products (or services) it covers (based on the classes of goods and services set out in the Nice Classification) must be filed with the Patent Office. The Patent Office exam - ines the content of the application and the capability of registering the trade mark, but at this stage it will not examine any potential conflict with prior registra - tions or other third-party rights. If the statutory require - ments are met, the Patent Office publishes notification of the application in the Patent Office Bulletin. Third parties have three months to file an opposition to a trade mark application on the basis of their earlier trade marks or other rights. The opposition may be brought in respect of one, some or all of the classes of the Nice Classification. If successful, the Patent Office may grant protection for those classes that have not been challenged, unless the opposition has been proved to be unfounded, or it may refuse protection. Claims concerning infringement of a protection right over a trade mark are heard before a court in civil proceedings. In addition to the remedies available in the case of infringement of a patent, the trade mark holder may demand that the infringing party ceases placing a mark identical or similar to the registered trade mark on packaging, labels and tags, or ceases offering, marketing, importing, exporting and storing such packaging, labels and tags.
In addition to the rights registered with the Polish Patent Office (see below, as well as 7.2 Trade Marks and 7.3 Industrial Design ), it is possible to apply for protection over inventions, trade marks and other industrial properties through international channels. For trade marks and industrial designs, it is possible to obtain protection throughout the EU with a single application. Patents protect inventions that: • are new; • have an inventive step – ie, the invention is not obvious to a person skilled in the given field; and • are capable of industrial application – ie, based on the invention, a product may be obtained or a method used in any industrial activity. Patent protection lasts up to 20 years (subject to the payment of annual maintenance fees). To obtain a patent, the application must be filed with the Patent Office and must contain a motion, a description of the invention, claims and an abstract of the invention. If the application is not filed by the creator, it is necessary to ensure the acquisition of the right to obtain a patent by the entity applying for patent protection (future patent holder). If statutory requirements are met, the Patent Office then issues a relevant decision, provided that the fee for the first protection term is paid. When a patent is granted, this is entered in the patent register. Claims concerning infringement of a patent are heard before a court in civil proceedings. The patent holder may demand cessation of the infringement or the surrender of any unlawfully obtained benefits. If the infringement is culpable, the patent holder may also demand reparation of damage in accordance with general principles or by the payment of a sum of money in the amount of a licence fee or other relevant remuneration that would be due and payable to the patent holder for consenting to use of the invention. In addition, the patent holder may demand that the ruling concerning the infringement be made public.
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