1. Design and design rights
- industrial design (hereinafter a ‘design’). A design is a new and individual form of a prodThe right to registration (hereinafter the ‘design right’) is granted for an uct or a part of a product, representing the features of the outline, shape, colours, structure, or ornaments of the product (the list is open). The form of the product shall be understood as its appearance.
2. Design application
- The design application shall contain at least the identity of the applicant, the description of the subject of the application and a request for the granting of a design right. Additionally, a design illustration, i.e. drawings, photographs or any other graphical representations shall be filed.
- The illustration shall show the product, with a clear indication of the essential features of the design. As a rule, one design per application is allowed. However, the application may include varieties of the design, i.e. separate appearance of the product that share the same material features. A single application may not exceed ten variants, unless the varieties form a set of products. If there are more than ten, the application shall be divided. If not divided, the application is regarded as applying to the first ten variants.
- Until the decision to grant the design right is given, the applicant may make supplements or amendments to the application. The amendments may not concern the design itself or the varieties presented in the specification, drawings or photographs.
- Filing a description providing an explanation of the design illustration may be attached to the application is optional as of 1 December 2015. Previously it was an obligatory part of the design application.
- Protection may be sought for partial design. If the novelty and individual character refers to partial design, the illustration must present the entire product. The claimed and disclaimed features must be clearly differentiated. As a general rule broken lines are recommended. When broken lines cannot be used due to technical reasons other disclaimers can be used: colour shading, boundaries and blurring.
3. Registration procedure
- The Patent Office of the Republic of Poland (hereinafter the ‘PPO’) grants design rights in an administrative proceeding started with a design application. The proceeding focuses on a formal examination. Nevertheless, novelty or individual character, as well as the registration requirements for a complex product or component part, or a design’s contravention of public policy or accepted principles of morality, may constitute grounds for refusal of protection.
- PPO issues a decision to grant a design right on the condition that the fee for the first protection period is paid. A design right is granted for 25 years following the filing date, divided into five-year periods provided that the protection fee is paid. Renewal is subject to timely renewal payments. Lack of payment results in the lapse of the design right on the day the previous protection period expires.
- The issuance of a registration certificate proves the granting of a design right. The certificate consists of an industrial design specification containing the description (if provided), drawings, photographs and textile samples included in the application. The industrial design specification is made available to third parties. Unlike in EU law, it is impossible to defer the design’s publication.
4. Scope of registration
- The design right is territorial and confers the exclusive right to exploit a design for profit or professional purposes in Poland. The proprietor may forbid any third party to make, offer, market, import, export or use a product in which the design is contained or applied, or to store said product for the purposes mentioned above.
- Unlike in the EU system, the design right is limited to products indicated in the application (the ‘specialisation rule’). The applicant is obliged to classify the goods in accordance with the Locarno classification. The IPL does not allow for registration of a general solution that may be used on different goods, for example a pattern that will be used on fabric, furniture or notebook covers.
- One of the amendments of IPL was the repeal of regulation, which prevented registered designs benefiting from copyright after their registered rights expired. Following the repeal, design owners no longer have to choose between copyright or registered design rights to protect their designs. Now the design has stronger protection by way of design right and copyright.
- Within six months after publishing of granting of design right in the PPO’s official bulletin "Wiadomości Urzędu Patentowego" (further: ‘WUP’), any person may file an opposition to a decision on granting a design right. The opposing party shall prove that the statutory requirements for design registration have not been met.
- If the design owner disputes the opposition, the case is transferred to PPO’s dispute division. The opposition procedure includes the hearings and the writs exchange. Parties shall present the evidences to support their arguments. After the opposition proceeding, the PPO shall issue a decision dismissing the opposition or recognising it in whole or in part. If the PPO accepts the opposition as justified, the design will be dismissed. The party that does not accept the PPO’s decision, may file an appeal to the administrative court.
- As of October 14, 2016, the Polish Patent Office significantly decreased the protection fee for the designs. The application fee for registration of a single design, in the amount of 300 pln (approx. Euro 75), shall be paid on filing day. The fee for first five-year protection period, in the amount of 150 pln (approx. Euro 37,5) shall be paid after registration. The opposition fee equals to 1,000 pln (approx. Euro 250). The fees decrease makes the Polish fee competitive to the EU one.