The Supreme Court in its judgment of 21 October 2010 case file IV CSK 231/10 held that the combination of colors may serve as a trademark but the entrepreneur, who is entitled to the right of protection, cannot prohibit the use of one of such colors that is used by another entrepreneur in its trade mark. Judge Wojciech Katner stated that the single color cannot be a trademark.

The object of protection is in this case a combinations of colors, as referred to in Article 120(2) of the Polish Industrial Property Law. The trade mark infringement occurs when the proportions and the use of a given color by another entrepreneur will not allow for distinguishing of trade marks. Sending the case back for reconsideration the Court stated that the judgment of the court of the second instance should be clarified so that the dominance of the green color, would not suggest that this was British Petroleum fuel station. The court agreed with the defendant that one cannot monopolize the colors, and only some are valuable on the fuels market. The Court held that although different entrepreneurs use the same color to designate their stations, it will not lead to consumers confusion because of the layout, and even a shade of these color. See also “Trade mark law, case IV CSK 61/09“.

Categories: Art. 10 CUC | Art. 120(2) IPL | Art. 5 CUC | non-traditional trade marks | Polish Act on Combating Unfair Competition | Polish Act on Industrial Property Law | Polish courts | Polish Supreme Court | single colour | trade mark infringement | trademark law | unfair competition delict | unfair competition law.