Information about the commercial origin of a product tells a potential buyer which entrepreneur manufactured the product. It is naturally in the interest of entrepreneurs to fight to ensure that other market participants do not impersonate them. In the interes of consumers – that they are not mislead in that regard. On the other hand, entrepreneurs must keep in mind that even if certain communications they use do not interfere with the exclusive rights of third parties, this circumstance is not by itself sufficient to establish that it is perfectly safe to use them.
Legal framework
The possibility to use certain designations and information about the commercial origin of a product is regulated in Poland primarily by two statutes:
1) the Act on Counteracting Unfair Market Practices (ACUMP) – transposing the EU Directive,
2) the Act on Combating Unfair Competition (ACUC).
What is crucial, the law guarantees protection also for entrepreneurs that do not possess any appropriate intellectual property rights in their portfolio or are unable to use them to stop selected creative unfair acts of third parties.
Unfair market practices.
Pursuant to Article 4(1) and (2) of the ACUMP, an unfair market practice is one that is contrary to the requirements of professional diligence and materially distorts or is likely to distort the economic behavior of the average consumer before, during, or after the conclusion of a contract with regard to the product, while it is assumed that deceptive market practices, aggressive market practices, and the application of an unlawful code of good practice are considered to have such an effect. It is worth to keep in mind that an unfair commercial practice may constitute a practice that infringes on the collective interests of consumers – in such cases the situation may draw attention of the President of the Office of Competition and Consumer Protection.
Unfair market practices.
When communicating the commercial origin of products, the prohibition of misleading market practices is of particular importance. These may take the form of, for example (art. 5 ACUMP):
1) dissemination of false information,
2) dissemination of information in a manner likely to mislead,
3) other confusion-generating activities related to the marketing of the product (e.g., in the context of confusing comparative advertising),
- while taking into account in each case all the elements of the market practice in question and the circumstances of the product launch, including the manner of its presentation.
Important! Commercial origin is considered one of the main characteristics of a product that may be affected by a misleading act.
Unfair market practices.
CAUTION! In exceptional cases, even correct communication of the commercial origin of products may generate a risk of violating consumer rights! As of January 1, 2023, as a result of the amendment of Polish regulations in connection with the implementation of the so-called Omnibus Directive, it may also be considered as misleading to introduce goods on the Polish market as identical to goods introduced in another EU country in a situation where the goods sold in Poland "significantly differ in composition or characteristics, unless justified by legitimate and objective factors". In such cases, the communication of commercial origin, in order to limit potential risks, should be accompanied by relevant additional information.
Acts of unfair competition.
Improper communication of the commercial origin of a product violates not only the interests of consumers – affected by such behavior are, in particular, the competitors of the trader using questionable signs. Examples of unfair competition acts include, in particular (art. 5 and 10 ACUC):
1) the designation of an enterprise that may mislead customers as to its identity,
2) designation of goods or services (or lack thereof) that may mislead customers as to their origin.
Important! The regulations explicitly indicate that the origin of a product is one of its essential characteristics!
Acts of unfair competition.
It sometimes happens that the use of a similar designation by more than one entrepreneur, which may mislead other market participants, is not the result of malice on the part of any party. Such a situation may be the result, for example, of entrepreneurs using their own, identical, names as part of the signs they utilise, or that they were formed as a result of a breakup of an enterprise previously run jointly/functioning as a whole. In such situations, if the entrepreneurs concerned fail to reach an agreement, they may request that the court determine the manner of use of such designations or their permissible content (art. 6 and 7 ACUC).
As it turns out, in practice, there can be a whole range of risks and uncertainties associated with informing of a product's commercial origin. It is therefore advised to precede its launch by duly identifying designations and communications which are already present on the market!