Використання державної символіки України та Республіки Польща в торговельних марках: проблеми регулювання

The international and national regulatory framework for the protection of state symbols of Ukraine and the Republic of Poland (RP), in particular as part of trademarks, has been examined. International law and national legislation have established protective norms that provide for the procedure for using state symbols and liability for their unlawful use. The article compares Ukrainian and Polish legislation on the usage of state symbols in trademarks. In addition, a critical assessment was provided of the approach taken by Ukrainian lawmakers to include images imitating the small State Emblem of Ukraine in trademarks, as this contradicts the provisions of Article 6 ter of the Paris Convention for the Protection of Industrial Property (Paris Convention) as an absolute ground for refusal, which obliges to recognise the registration of such trademarks as invalid without the appropriate permission of the competent authorities. The article analyses the state of legal regulation and use of state symbols in trademarks in the Republic of Poland, the genesis of the application of exceptional conditions for granting legal protection to signs containing state symbols of the Republic of Poland and their relationship with Article 6 ter of the Paris Convention regarding the general prohibition of such use. The article is based on relevant case law of the Republic of Poland, which draws attention to legal uncertainty in the regulation of legal relations: the absence of a competent authority to grant permission to use state symbols in trademarks, and the absence of the state coat of arms and other symbols of the Republic of Poland in the WIPO database. In addition, given the specific nature of ex officio proceedings concerning EU trademarks, relevant recommendations are made to include a complete list of official symbols of the Republic of Poland in the relevant WIPO database, as the unlawful use of state symbols and official designations in trademarks constitutes unfair competition. This article was prepared as part of the research project ‘Protection against unfair competition in the intellectual property law system in the context of European integration’, carried out by the Research Institute of Intellectual Property of the National Academy of Legal Sciences of Ukraine.