Znaczenie braku zamiaru używania znaku towarowego w świetle zgłoszenia znaku towarowego w złej wierze

Abstrakt

The paper aims to analyse two terms: bad faith and intention to use under the Polish trademark law. One of the absolute grounds for trademark refusal listed in Article 129¹ Par. 3 of the Industrial Property Law is making the filing in bad faith. However, the concept of bad faith is not as clear as it seems to be. Difficulties with understanding this normative phrase, in particular as regards its material scope, have impact on legal doctrine as well as legal and court practice. One of the latest developments regarding to this subject is approval of concept that intention to use trademark in commerce is the positive ground for trademark registration; therefore, lack of such intention justifies a claim that the applicant filed trademark application with bad faith. The above-mentioned proposal seems to be not grounded. On the one hand, it narrows down the scope of bad faith only to situations in which the applicant cannot prove his intent to use trademark in commerce; therefore, different deceitful purpose than lack of intention to use trademark cannot be classified as a bad faith filing. That means that trademark application meets all requirement and should be registered. On the other hand, lack of intention to use trademark by applicant cannot be seen as equal to bad faith filing, because applicant may file application honestly but without intention to use trademark.