Each of us encounters trademarks in our daily lives quite often. However, we do not always realize what we are dealing with. Knowledge in this area can prove very useful, both professionally and privately, as it allows, on the one hand, to secure one’s own interests, and on the other, to avoid the often unpleasant consequences of infringing on the rights resulting from these marks.
Without delving too much into legal intricacies, a trademark should be understood as a type of designation that allows for the identification first of the product, and second of the manufacturer. This designation is usually identified with a certain graphic form, but a sound signal or some spatial form can just as well be considered a trademark. In Polish legislation, the legal definition of a trademark is contained in Article 120 of the Industrial Property Law Act. It is important that the legislator, by listing individual forms of trademarks, does not create a closed catalog of them. Therefore, any designation that has an equivalent presented in graphic form (in the case of sound marks, musical notation) identifying the product can be considered a trademark.
It should also be noted that a trademark does not become one upon proper registration in the national or community-wide register, but it is one from the moment of actually marking products with it for the purpose of their identification. However, it only becomes a fully protected property asset after registration is obtained. In doctrine, 4 main functions of trademarks are mentioned: the function of indicating origin, the guarantee function, the advertising function, and the information function. A reading of these synthetically presented functions of trademarks leads to the conclusion that 3 of them have an impact on ensuring or increasing the sense of security when in contact with a product bearing a trademark. To illustrate the problem, one should use a well-known saying. When encountering such a product, we are not dealing with a “pig in a poke.” We have, or can easily obtain, information about the origin of the product, and thus its manufacturer. Therefore, we know who might be held responsible for product defects and its non-compliance with the intended use. However, the most important function of a trademark, which influences the increase in safety of working with or on such products, is the guarantee function. A trademark and the product behind it are characterized by certain quality standards. The recipient, the user, when buying a branded product, counts on the quality appropriate for products bearing a given trademark. The above is related to the information function of the trademark, as the very act of marking a product with a trademark provides its recipient with a range of information, including in particular information about the quality of the products.
The legislation of European Union countries creates legal institutions allowing for the registration of trademarks and the protection of those already registered. Polish legislation in this regard does not deviate from the main European trend, so it should be considered appropriate for discussing the issue. As already mentioned, a trademark is fully protected only after proper registration has been made. Upon registration, the holder of the trademark obtains both criminal and civil instruments intended to protect their rights. From the criminal side, first of all, attention should be drawn to Article 305 of the Industrial Property Law Act, which penalizes behavior consisting of marking products with counterfeit trademarks for the purpose of introducing them into circulation, as well as trading in such goods, and it should be noted that this crime can be committed only in relation to registered trademarks. Registration can be national or international. From the point of view of an ordinary participant in trade, it seems important to supplement the above with legal concepts, namely the subjective side of this crime.
The article comes from the magazine “Logistyka” 3/2011.