Lack of registrability
Some businesses make use of national symbols on their products or use them in advertising. The popularity of this practice – particularly the use of national colours and flags – increases during important sporting events, such as football championships or the Olympic Games. But while the use of national symbols for commercial purposes may undoubtedly boost sales, is it always in line with Polish regulations?
According to regulations, national symbols are excluded from copyright protection. However, they are protected under the Act on Coat of Arms, Colours and Anthem of the Republic of Poland and State Seals. The act forbids the commercial use of national symbols, but also provides for explicit exceptions, allowing the use of stylised or "artistically processed" national symbols.
Polish national symbols are precisely defined in the act. For example, 'national colours' are defined as two parallel stripes of the same size of red and white, where each colour is of a particular shade indicated by the use of CIELUV colour space. As a result, reproducing the national colours in different shades and shapes is considered as use of a stylised version of the colours and is admissible. Even a slight modification of the national symbol is sufficient for it to be considered 'artistically processed'; however, the act provides no regulation on how substantial the change should be. Although in practice even faithful reproductions of Polish national symbols are rarely questioned, it is recommended that visible changes are made to national symbols used for commercial purposes.
The law contains no explicit regulation forbidding the commercial use of symbols of other countries. Nevertheless, both Polish and foreign symbols are protected against public profanation and insult. Any public use that could be damaging or insulting may be considered a criminal offence. Therefore, it is important not to use any national symbol (even if artistically processed) in a way that could be deemed as disrespectful or offensive.
Although modifications of national symbols may be used commercially, obtaining trademark protection for a sign containing such a symbol (even a modified one) is generally impossible. In this respect, Polish law is concordant with the Paris Convention for the Protection of Industrial Property and EU Community Trademark Regulation (207/2009). In the majority of cases, applications for the protection of signs that include references to national symbols will be refused by the Patent Office.
Therefore, when planning commercial activity comprising the use of a national symbol in a graphical representation, business owners should consider that obtaining trademark protection for such a sign will likely be impossible. The Industrial Property Law clearly indicates that symbols of Poland and other countries are excluded from registration without official consent from the relevant authority. In practice, obtaining such consent may be difficult, even impossible.
However, following the July 24 2015 amendment it is now possible to register trademarks containing the word 'Poland'. Previously, registering 'Republic of Poland' or any shorthand versions of this official name was not allowed.
The commercial use of artistically processed national symbols is allowed. It is sometimes argued that even minor changes to national symbols are sufficient to justify reference to the Polish flag or coat of arms in an advertisement or on a product. However, it is recommended that any changes are made visible in order to comply with regulations. A change which is not noticeable could be deemed as not artistic enough. It is also important that use of a national symbol is not considered disrespectful or insulting. Further, parties intending to use a national symbol in a commercial way should be aware that obtaining protection for a trademark that includes a reference to a national symbol will likely be impossible.
For further information on this topic please contact Szymon Gogulski or Mikolaj Skowronek at Soltysinski Kawecki & Szlezak by telephone (+48 22 608 7000) or email ([email protected] or [email protected]). The Soltysinski Kawecki & Szlezak website can be accessed at www.skslegal.pl.