Published: 2020-12-15

Acquisition of Secondary Distinctiveness as a Prerequisite for the Grant or Refusal to Declare Invalidity of a Trademark Protection Right

Joanna Sieńczyło-Chlabicz
Zeszyty Prawnicze
Section: Artykuły
https://doi.org/10.21697/10.21697/zp.2020.20.4.14

Abstract

This article examines the concept of acquisition of distinctive character in the Polish proceedings for the registration of a trademark, and also in proceedings for the declaration of the invalidity of such a right. The acquisition of secondary distinctiveness is a prerequisite for the grant or refusal to declare the invalidity of a trademark protection right. The article presents the understanding of the requirement concerning the use of a mark as a trademark as the basic condition for the acquisition of secondary distinctiveness, and the liberal approach to this issue practised by the European courts. Te article discusses evidence of the acquisition of secondary distinctiveness, and the review conducted by Polish administrative courts of the Polish Patent Office’s decisions on such matters.

The article analyzes these issues with respect to Polish and European industrial property law on trademarks, and also considers the case law of the European and Polish administrative courts (the Warsaw Voivodeship Administrative Court and the Polish Supreme Administrative Court).

Keywords:

trademarks; distinctive character; the grant of registration; declaration of invalidity; element of a composite trademark; the use of a trademark; use of a mark as part of a registered trademark; refusal of a declaration of invalidity.

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Citation rules

Sieńczyło-Chlabicz, J. (2020). Acquisition of Secondary Distinctiveness as a Prerequisite for the Grant or Refusal to Declare Invalidity of a Trademark Protection Right. Zeszyty Prawnicze, 20(4), 267–294. https://doi.org/10.21697/10.21697/zp.2020.20.4.14

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