Graficzne przedstawienie znaku towarowego w świetle ustawy Prawo własności przemysłowej oraz Dyrektywy Rady nr 2008/95/WE

Abstract

The polish definition of the trademark is based on the fundamental function which trademarks have to fit. According to the general notion, the constitutive condition of a trademark is not an individual or imaginative feature which is important in the copyright law, but only the capability to distinguish the goods and services on account of origin. Firstly, it is important to analyse if a mark fulfills following conditions: it has to be perceivable by human sense, be uniform and self‑dependent against other goods, further it has to be capable to represent graphically. The article presents the graphical capability, which refers to presentation of the mark in the graphical way. That prerequisite was entered into Polish system pursuant to the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trademarks and Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark. That expression is not obvious, particularly because of the interpretation of registration of the marks perceiving in different way than by means of visual, auditory and tactile modality. According to that fact in this paper were presented the notions of the European Court of Justice and the Office of Harmonization for the Internal Market concerning the so called new forms of trademarks. There are shown two different points of interpretation: the traditional and liberal one.