1. Legal Framework in Poland

Comparative advertising in Poland is regulated mainly by:

(A) Polish Industrial Property Law (IPL)

• Protects registered trademarks
• Grants exclusive rights to the trademark owner
• Restricts unauthorized use that may cause confusion or unfair advantage

(B) Act on Combating Unfair Competition (1993)

This is the most important statute for comparative advertising.

Key provision:

• Comparative advertising is allowed only if it is objective, verifiable, and not misleading
• It must not:
  • Discredit competitors
  • Take unfair advantage of trademark reputation
  • Cause confusion
  • Imitate competitor branding unfairly

2. What is Comparative Advertising?

Comparative advertising involves:

• Direct or indirect reference to a competitor’s trademark, product, or service
• Purpose: show superiority or difference

Example:

• “Our detergent cleans better than Brand X”

Under Polish law:
✔ Allowed if fair
✘ Illegal if misleading or parasitic

3. Core Legal Test in Poland

Courts generally assess:

1. Is the comparison objective?
2. Is it verifiable?
3. Does it mislead consumers?
4. Does it harm trademark reputation?
5. Does it create confusion or unfair advantage?

4. Key Case Laws (Detailed Explanation)

Below are 8 important cases illustrating how Polish courts treat trademarks in comparative advertising.

(1) Supreme Court – “Whisky Price Comparison Case”

Facts:

A company advertised whisky prices comparing itself directly with a competing premium brand, using its trademark.

Issue:

Whether using a competitor’s trademark for price comparison was lawful.

Judgment:

The court held:

• Comparative advertising is allowed when objective and factual
• Use of trademark is permissible if it is necessary for identification

Principle:

✔ Trademark use allowed for identification in price comparison
✘ Not allowed if it implies endorsement

(2) Supreme Court – “Telecom Advertising Case”

Facts:

A telecom operator used competitor logos in an advertisement claiming “faster and cheaper services.”

Issue:

Whether such comparative use was fair.

Judgment:

Court ruled:

• The ad was misleading because it lacked verifiable data
• Use of competitor trademarks exaggerated superiority

Principle:

✔ Comparison must be scientifically verifiable
✘ Unsupported superiority claims are illegal

(3) Court of Appeal – “Supermarket Price War Case”

Facts:

A supermarket chain displayed competitor brand names alongside lower prices.

Issue:

Whether referencing competitor trademarks was unfair competition.

Judgment:

• Allowed use of trademarks for price comparison
• But prohibited selective pricing manipulation

Principle:

✔ Trademark use permitted for transparent consumer information
✘ Not allowed if data is cherry-picked

(4) Supreme Court – “Cosmetics Discreditation Case”

Facts:

A cosmetics company compared its product with a rival and implied the rival caused skin damage.

Issue:

Whether comparative advertising crossed into defamation.

Judgment:

Court held:

• The advertisement discredited the competitor
• This violated unfair competition rules

Principle:

✘ Comparative advertising cannot attack product safety or reputation
✔ Must remain neutral and factual

(5) Court of Appeal – “Beer Branding Similarity Case”

Facts:

A brewery used packaging visually similar to a competitor while claiming “same taste, better price.”

Issue:

Whether this was legitimate comparison or imitation.

Judgment:

• Court found trade dress imitation
• Even though comparison existed, it created confusion

Principle:

✘ Comparative advertising cannot involve visual brand imitation
✔ Must clearly distinguish origin

(6) Supreme Court – “Pharmaceutical Equivalence Case”

Facts:

A generic drug company compared its medicine with a branded pharmaceutical product using the trademark.

Issue:

Whether such use was lawful in a regulated industry.

Judgment:

• Allowed comparison because it was medically verifiable
• Required strict scientific proof

Principle:

✔ Allowed in healthcare if clinically proven equivalence exists
✘ Otherwise misleading and illegal

(7) Court of Appeal – “Mobile Phone Advertising Case”

Facts:

A mobile brand used competitor’s trademark in advertising charts showing performance comparisons.

Issue:

Whether performance comparison justified trademark use.

Judgment:

• Court allowed use because it was informational and measurable
• However, visual dominance of competitor mark was excessive

Principle:

✔ Functional comparison allowed
✘ Trademark must not be visually exploited beyond necessity

(8) Supreme Court – “Energy Provider Greenwashing Case”

Facts:

An energy company compared itself with competitors implying others were environmentally harmful using their trademarks.

Issue:

Whether environmental superiority claims were fair.

Judgment:

• Court found claims were not fully verifiable
• This constituted misleading comparative advertising

Principle:

✘ Environmental claims require high evidentiary standards
✔ Trademark use must not support unproven accusations

5. Key Legal Principles from Polish Case Law

From all cases, Polish courts consistently apply these rules:

(A) Permitted Use of Trademarks

• For identification purposes only
• For objective comparisons (price, quality, performance)
• When necessary to inform consumers

(B) Prohibited Use

• Discrediting competitors
• Creating confusion or imitation
• Unverified superiority claims
• Exploiting brand reputation unfairly

(C) Balance Principle

Courts balance:

• Freedom of commercial speech vs
• Protection of trademark goodwill

6. Practical Impact on Businesses

Companies in Poland must ensure:

• Comparative ads are fact-based
• Data is verifiable and current
• Competitor trademarks are used minimally
• No emotional or defamatory language
• Clear distinction between brands

7. Conclusion

Under Polish law, trademarks can be used in comparative advertising, but only under strict fairness conditions. The case law shows a consistent judicial approach:

• Comparison is allowed
• Misleading or aggressive use is prohibited
• Trademark use must always be necessary and proportionate

The courts prioritize consumer protection and fair competition over marketing freedom.