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Trademark - what should you know about it?

Each company uses a name, slogan, logo or logotype. It is not common practice for smaller entrepreneurs to register the above-mentioned elements, but it is the trademark that should be particularly important for each of them. Why? We explain below.

Trademark - what is it?

The definition of a trademark can be found in Art. 120 of the Act of June 30, 2000 - Industrial Property Law, as well as in the EU regulation of February 2, 2009. about a community trade mark. The Polish legal act defines a bit more clearly what we define as a trademark:

Art. 120.

1. A trademark can be any sign that can be represented graphically, if such a sign is capable of distinguishing the goods of one enterprise from the goods of another enterprise.

2. A trademark within the meaning of para. 1 may be, in particular, a word, a drawing, an ornament, a color composition, a spatial form, including the form of a product or packaging, as well as a melody or other sound signal.

These are fairly general guidelines, but in practice the trademarks can be:

passwords or words (e.g. Orlen, T-Mobile, Nike),

slogan or word combined with graphics (e.g. a trademark of the Orange network),
graphic sign (e.g. a stork - the symbol of the Polski Bus shipping company),
a three-dimensional mark, i.e. the shape of the packaging (e.g. the shape of a Grolsch beer bottle) or the product itself (e.g. the shape of Toblerone chocolate),
color composition (e.g. a characteristic shade of purple, reserved by the manufacturer of Milka chocolates),
multimedia presentation - there is only one example here - Nokia reserved a few seconds long video showing grasping hands,
a short melody (e.g. the melody that opens Metro-Goldwyn-Mayer films),
smell - a mark registered primarily in the United States, e.g. the smell of freshly cut grass,
Internet domain (e.g. google.pl).

However, entrepreneurs, especially those who are just building awareness of their brand among recipients, most often reserve the rights to the name or logo.

Is it worth protecting a trademark?

Why is it worth protecting a trademark? First of all, it significantly affects the company's image - it combines services or products with a specific brand, suggests that it is a serious, wealthy enterprise that can take care of its interests. It also regulates the issues of brand ownership - the application for registration of a trademark clearly indicates who is its owner and for which goods or services it has a legal monopoly. This is important especially in two situations:

when the brand becomes very popular and the company is co-created by several people - recognition is often associated with high revenues, and thanks to the fact that the owner of the trademark is known, the issues of using funds from this source, using it for marketing or commercial purposes are significantly simplified or finally the sale of the mark,
when a company is threatened with bankruptcy - a trademark has its value, especially when the brand is recognizable. In order to save the company's finances, it can be sold, and in the case of bailiff enforcement - put up for auction.

Secondly, it is an effective tool in the fight against unfair competition practices. It is common for smaller, less known companies to pretend to be those that have already made a name for themselves on the market. A logo or name that resembles those of a recognizable company, a packaging with a color that only slightly differs from the original, similar advertising slogans or, finally, the unlawful use of someone else's trademark - these are phenomena that can be observed at almost every step. These are acts of unfair competition and are intended to mislead the customer as to the identity of the producer or product - such actions constitute a crime and are punishable by a fine, restriction of liberty or even imprisonment for up to two years:

Art. 24 of the Act on Combating Unfair Competition

Who, by means of technical means of reproduction, copies the external form of the product or places the copy on the market, thus creating the possibility of misleading customers as to the identity of the producer or the product, which causes serious harm to the entrepreneur, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to years 2.

Of course, someone who knowingly infringes someone else's rights to a trademark may also be liable under civil law - in such a case, the trademark owner will be able to claim damages both on the basis of Art. 415 of the Civil Code, stating that whoever caused the damage is obliged to repair it, as well as the provisions of the Act on Combating Unfair Competition, in particular Chapter 3 - Civil Liability.

If we register a trademark and obtain protection rights to it, it will be easier for us to assert our rights, not necessarily even in court proceedings. Sometimes the mere summons to stop infringements, supported by a relevant certificate from the Patent Office, is enough to end such actions.

Trademark - registration procedure

The procedure for registering a trademark is relatively long, but, as can be seen from the above considerations, it is by all means beneficial to the company. It is made at the Patent Office of the Republic of Poland. The application can be submitted independently or through an attorney-in-fact.

First, check in the Search Engine for Protected Objects - databases of the PPO and international databases (via the network or in the General Reading Room of the Patent Office of the Republic of Poland) whether the same mark has already been registered and registered by another entity, and then submit the application form with the required attachments . The form should accurately describe the registered mark according to the guidelines that can be found in the appendix to the form, as well as include a list of goods and / or services and indicate the appropriate goods and / or service classes based on the International Classification of Goods and Services (Nice Classification). When submitting the application, it is also necessary to pay a fee in the amount indicated by the Patent Office in a special tariff.

The form can be submitted in person, by a patent attorney, by mail, fax (although in this case the original must be delivered within 30 days of receipt of the document to the Patent Office) or online - if we choose this type of application, we must do it using the software and formats of the Patent Office, and in addition, we are required to affix all documents with a secure electronic signature. The application can also be submitted via the ePUAP profile - Electronic Inbox of the Patent Office. Information on which forms should be filled in and how to submit an application electronically can be found on the website of the Patent Office.

The application must include, first of all: