Protection of Unregistered Distinctive Signs Within Unfair Competition Law: The Polish Perspective

Abstract

The protection of unregistered distinctive signs is essentially non-standardised at the international and EU level. The purpose of the paper is to provide an overview of the legal framework relating to the protection of trade names, unregistered trade marks and geographical indications from the perspective of Polish law in which protection of unregistered distinctive signs is predominantly available based on unfair competition law. The analysis takes account of the respective EU legislation, notably the Unfair Market Practices Directive and its impact on combatting unfair competition caused by use of distinctive signs under Polish law, as well as interactions with the national and EU legislation in other areas, such as trade mark law and protection of registered designations of origin and geographical indications. Comparative remarks are occasionally included. The paper also examines the issue of the nature of civil law protection of unregistered distinctive signs under Polish unfair competition law, which is the subject of divergent views among Polish scholars. With regard to the perplexing question of whether provisions of unfair competition law could constitute a basis for distinguishing exclusive rights to unregistered distinctive signs or whether they provide ‘merely’ tortious protection that does not presuppose the existence and infringement of such rights, the paper puts forward arguments in support of the latter qualification.