Trademarks "Eco-friendly" What's New in Poland?

Recent research indicates that the eco-cosmetics segment in Poland grew by 39% between July 2019 and June 2020 while the product range of this product group grew by almost 50% over the year. Despite the pandemic, the market for organic food also grew by about 20%, i.e. 3.5 times more than the average for the entire food basket.  The media and the advertising industry have to keep up with the change in consumer behaviour. Eco-campaigns, apart from the products themselves, additionally refer to values such as care for the environment, ecology or healthy lifestyle. The opposite of natural media is the so-called "greenwashing", which is unjustified building of an ecological image and misleading consumers about the origin or characteristics of products. 

BIO, EKO or natural?

From a legal point of view, the origin and actual features of a product are of utmost importance, as they largely determine (and in fact should determine) the potential and scope of marketing opportunities - including trademark and marketing strategy.

According to the Polish Industrial Property Law, a trademark will not be granted protection when it is descriptive, misleading or contains an officially recognized marking accepted for use in the trade, in particular a safety mark, quality mark or hallmark of certification, to the extent that it is likely to mislead the public as to the nature of such marking, unless the applicant proves that it is authorized to use it.

One of such indications is the organic logo of the European Union, which may only be used in the labelling, presentation and advertising of products that meet the requirements imposed by the European Union:

Currently, it is against the law in Poland to use prefixes like "eco" and "bio" in brand names of products and in the names of companies not connected with organic food production. For example, the Patent Office of the Republic of Poland refused to register, among others, the following trademarks for the above-mentioned reasons or an opposition was successfully filed against the registration of one of them:

	Filed under the classes of the Nice classification: 5: for: food and dietetic substances for medical purposes; 29: preserved 30: coffee, coffee extracts, preparations and beverages based on coffee
	Filed under the classes of the Nice classification: 3: cosmetics for washing; caring for, beautifying the hair and body, including: hair and body cleansers, bath products, etc.
	Filed under the classes of the Nice classification: 22: films; bags and packaging made of organic materials (biopolymers) suitable for composting
	Filed under the classes of the Nice classification: 3: cosmetics; foot, hand and nail care products; nail polish; nail conditioners etc.

Organic food - rules for labelling and advertising

On January 1st, 2022, the new Regulation 2018/848 of the European Parliament and of the Council will come into force, which will apply in the European Union, including Poland. It will also affect the amendment of the Polish Organic Farming Act. The regulation defines the rules regarding organic production and the related certification, the use of labels referring to organic production such as BIO (biological) and EKO (ecological) in labelling and advertising materials.

According to the regulation, an organic product is a product originating from organic production Such production is a management system based on, inter alia, respect for natural systems and cycles and maintenance and improvement of soil, water and air, plant and animal health and balance between them, or use of energy and natural resources, such as water, soil, organic matter and air, in a responsible way. Organic production excludes use of GMOs, products produced of GMOs and products produced by GMOs, other than veterinary medicinal products, and in the case of food, at least 95 % by weight of the ingredients of agricultural origin should be organic.

Currently, the Polish law on organic farming is also under revision. Many of the proposed changes relate to notification and certification procedures and the overarching supervision of these processes. The law will also introduce specific sanctions, e.g.

for marketing organic products that do not meet the requirements set out in EU regulations or that have been labelled as organic in violation of these regulations,
 

for using in the advertising or commercial description of the product that does not meet the requirements of the regulations on organic farming a designation referring to organic production, including by labeling with the term "organic" or a derivative of this term, or the term "eco" or "bio".

Such action will be subject to a pecuniary penalty of up to 200% of the financial benefit obtained or that could have been obtained from the marketed products, but not less than PLN 1000. Regardless of the above, the responsible entity will be obliged to immediately change the labeling to the one that is not misleading and to immediately withdraw the agent, product or substance from the market at its own expense.

Cosmetics – trade mark is not enough

Polish and EU standards in the field of production and marketing must also be met by producers of cosmetics. Pursuant to Regulation 655/2013, no claims are allowed that refer to a specific advantage of a product if this advantage consists only in compliance with minimum legal requirements. Also, ingredient claims referring to properties of a particular ingredient must not indicate that the final product has the same properties if this is not true. Additionally, marketing communications cannot indicate that the opinions expressed are verified claims unless the opinion is supported by verifiable evidence. 

Importantly, claims must not attribute particular (i.e., unique) characteristics to a product if similar products on the market have the same characteristics, must be objective and should not present competitors or legitimate ingredients in bad light, and must not lead to confusion with a competitor product.