Polish courts are restricting the registration of trademarks bearing national symbols. Aleksandra Kryśka of Patpol examines the situation

It is a common practice to use national symbols as trademark components. They not only strengthen trademark attractiveness, but also evoke positive associations relating to the goods or services under the mark.

The Polish regulations, like analogous international or European regulations in this regard, impose limitations preventing one party from obtaining a monopoly on using trademarks incorporating national symbols or other symbols of international organisations. These regulations are based on a general assumption that symbols connected with the statehood shall not be incorporated in trademarks that are used in the course of trade.

Legal basis

According to Article 28(1) of the Constitution of the Republic of Poland, the image of a crowned white eagle upon a red field shall be the emblem of the country. Further, the emblem, colours and national anthem of Poland shall be subject to legal protection, and details in this regard are specified under other legal acts.

Subsequently, in the light of Article 1 of the Act on the Emblem, Colors and Anthem of the Republic of Poland and State Seals, the white eagle, the colours white and red, and ‘Dabrowski’s Mazurka’ are the symbols of Poland (clause 1), and using them with due honour and respect constitutes the right and obligation of each Polish citizen, as well as all state authorities, institutions and organisations (clause 2).

Moreover, these emblems shall remain under particular legal protection guaranteed by separate regulations (clause 3).

Article 2 specifies that the emblem of Poland is a white eagle with outstretched wings and a gold beak and talons, placed on a red heraldic shield. The eagle’s head is turned right, and it is bearing a gold crown.

The act also specifies the circle of the entities that are authorised to use the symbols of Poland (including, among others, the agencies of state authority and governmental administration, courts, prosecutors, organisational units of the armed forces, public schools and state universities) and stipulates that the emblem and colours of Poland shall be used in a manner that guarantees them due honour and respect.

Moreover, Article 16(1) of the Act on the Emblem, Colors and Anthem of the Republic of Poland and State Seals provides that the symbols of Poland cannot be affixed to the objects destined for commercial turnover. On the other hand, according to the act, the emblem or the national colours of Poland can be affixed to the objects destined for commercial turnover, provided that they are in stylised form or have been altered artistically.

In recent years, the number of applications filed in the Polish Patent Office (PPO) for registration of trademarks incorporating national symbols has rather been low. With a few exceptions of applicants who had permissions issued by competent state authorities or organisations to use the mark in the course of trade, in each case the PPO refused to grant a right of protection on the grounds of Article 131(2)(ii) of the Polish Law on Industrial Property.

Article 131(2)(ii) provides that a right of protection shall not be granted for a sign, if it incorporates the name or abbreviated name of Poland, or its symbols (emblem, national colours or national anthem), the names or armorial bearings of Polish voivodeships, towns or communities, the insignia of the armed forces, paramilitary organisations or police forces, reproductions of Polish decorations, honourary distinctions or medals, military medals or military insignia, or other official or generally used distinctions and medals, in particular those of government administration, local self-administration or social organisations performing activities in vital public interests, where these organisations’ activities extend to the entire territory of the state or to a substantial part thereof, unless the applicant is able to produce evidence of its right, in particular in the form of an authorisation issued by a competent state agency or a permission given by an organisation, to use the sign in the course of trade.

One of the cases, which finally had to be examined by the Supreme Administrative Court, concerned registration of the mark applied for by the Free Trade Union of Drivers (‘Wolny Związek Zawodowy Kierowców’) for goods and services in classes 4, 12, 35, 36, 37, 38, 39, 41, 42, 43, 44 and 45.

The PPO refused to register the mark, having indicated in the reasons that Article 131(2)(ii) of the IP law, which prevents the grant of a right of protection for a trademark incorporating the national symbols of Poland, performs two functions: it guarantees that the state as well as its agencies and institutions have a monopoly on using national symbols, by which these agencies or institutions or documents originating from them can be recognised; and it guarantees an average consumer a certainty that state symbols encountered in the course of trade are used by competent state institutions.

According to the PPO, a prohibition defined under Article 131(2)(ii) of the IP law may also refer to the cases where the image of an eagle used in a designation is not strictly identical with the one specified under Article 2 of the Act of 31 January 1980 on the Emblem, Colors and Anthem of the Republic of Poland and State Seals.

The applicant disagreed with the decision of the PPO and filed a complaint with the District Administrative Court. By a judgement of 6 March 2009 (VI SA/Wa 2376/08), the court dismissed the complaint.

According to the District Administrative Court, one cannot agree that the image of a bird placed inside the mark applied for registration is not the national emblem only because of some small differences in comparison to the sample attached to the Act on the Emblem, Colors and Anthem of the Republic of Poland and State Seals.

The district court also shared the standpoint of the PPO that, according to Article 131(2)(ii) of the IP law, a mark shall be denied registration if it incorporates a faithful reproduction of the white eagle presented in the attachment to the aforementioned act, and if it incorporates an image of an eagle that is similar to the eagle that is the national emblem of Poland. Incorporating such similar image into one’s indication with the aim of obtaining a right of protection renders that indication ineligible for registration as a trademark.

According to the District Administrative Court, in the light of the contents of Article 1(2) of the act, the PPO’s interpretation of the applied Article 131(2)(ii) of the IP law was correct.

Free Trade Union of Drivers did not accept the judgement of the District Administrative Court and filed a cassation complaint to the Supreme Administrative Court against the judgement in total, petitioning for its reversal.

The applicant claimed that the mark incorporates an artistically changed emblem of Poland, and the PPO had registered a number of marks incorporating artistically changed national symbols. According to the applicant, refusing to grant a right of protection for its trademark results in a limitation of competition and violates basic principles of the freedom of business activity. The mark applied for registration does not incorporate the national emblem of Poland and the PPO misinterpreted Article 131(2)(ii) of the IP law.

By virtue of a judgement of 21 April 2010, the Supreme Administrative Court dismissed the cassation (II GSK 555/09). The court stressed that a prohibition of granting protection imposed by the legislator covers the indications incorporating the national symbols of Poland.

Having taken into consideration the legislator’s rationalism, one has to assume that the interpretation of the term “national symbols” in the context of the discussed act cannot be regarded as incidental, but it must specifically refer to the emblem, colours or national anthem of Poland.

Having made such an assumption, and considering the contents of Article 131(2)(ii) of the IP law along with the provisions of the Act on the Emblem, Colors and Anthem of the Republic of Poland and State Seals, also including Article 28(1) of the Constitution of the Republic of Poland, the Supreme Administrative Court decided that all indications incorporating the image of a white eagle bearing a crown that is so characteristic for the national emblem, shall be exempt from registration as trademarks.

The Supreme Administrative Court added that the legislator, in the contents of Article 131(2)(ii) of the IP law, did not use the notion of the image of an eagle as it is exactly determined for the state emblem, but reference was made to the notions of a symbol and emblem, which are broader terms, for which insignificant differences in colour are irrelevant.

National symbols in sports

Pursuant to Article 3(a), being an amendment to the Act on the Emblem, Colors and Anthem of the Republic of Poland and State Seals implemented in 2012, the emblem of Poland shall be placed on the sports suits of Polish national teams, Olympic teams or paralympic teams, in accordance with the provisions set forth under the Sports Act of 25 June 2010.

An exception from this principle may only result from the regulations of international associations or the International Olympic Committee, which are binding on Poland, and which prohibit or impose an obligation to use other symbols, for example, a national flag instead of a national emblem.

The amendment resulted from a stir caused in wide circles by the suits of the Polish football national team designed for the UEFA European Championships 2012.

The official players’ jersey was decorated on the front with a stylised logo of the Polish Football Association, the word ‘Poland’, and the logo of the manufacturer of the jersey.

The official logo of the UEFA European Championship 2012 was also affixed to the jersey on the player’s arm.

But the traditional emblem of the white eagle upon the red shield, which had been formerly used by the national team, was removed by the Polish Football Association.

The decision of the Polish Football Association to substitute the national emblem with its logo and the logo of the manufacturer, which was the team’s official sponsor, caused wide outrage in sports circles. Most fans expressed their disapproval, requesting that the national emblem be restored to its former place.

Finally, the Polish Football Association abandoned its idea to use the newly designed logo, and the traditional emblem of Poland appeared again on the footballers’ jerseys.

In the light of the discussed article, it is essential to note that a Polish sports association has the right to use the image of the white eagle exactly as presented in the national emblem of Poland only for affixing it to a suit of the national team.

As a result of amendments to the Sports Act, one exception was made to the ban on affixing national symbols to objects destined for commercial turnover.

The relevant Polish sports associations and the Polish Olympic Committee obtained the right to use for, their commercial purposes, the objects which are the representations of the suits of national teams or the Olympic team (Article 13(4) states that a Polish sports association, the Polish Olympic Committee, or the Polish Paralympic Committee, have the right to use for their commercial purposes the objects that are respectively the representations of the suites of national teams, the Olympic team, or the Paralympic team, in the scope determined by the regulations of the relevant Polish sports association, the regulations of an international sport association in a given discipline, the regulations of the International Olympic Committee, or the regulations of the International Paralympic Committee).

As it can be seen from relatively poor case law in Poland concerning the use of national symbols in trademarks, Polish courts have adopted a restrictive interpretation of the regulations preventing registration of such marks and their use in the course of trade.

Such an approach is consistent with the European case law, which was formulated on the grounds of the judgements of the Court of First Instance of 21 April 2004 (T-127/02 Concept – Anlagen v OHIM), and then the Court of Justice of the EU of 16 July 2009 (C 202/08 P and C 208/08 P).

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