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This regulation has not always functioned in the Polish legal order. Under the Trademarks Act that preceded the Industrial Property Law Act, the marketing and designation of goods (or services) with a registered trademark which the perpetrator was not entitled to use was a punishable offence. Many legal scholars held the position that, based on the regulations in force at that time, the issue was only about deceptively similar marks. However, the Supreme Court did not share this position explaining that the legislator – in view of a clearly formulated provision – did not intend to penalize behaviours related to goods bearing confusingly similar marks (Supreme Court ruling of October 27, 1994, case I KZP 26/94). The Supreme Court pointed out in the justification of the ruling that since the Trademarks Act distinguishes between the notions of “registered trademark” and “mark similar to a registered trademark”, and there is no such distinction in the criminal provisions of that Act, it is clear that “similar mark” is not subject to the provisions of criminal law. Despite the Supreme Court having taken this stand, legal scholars continued to maintain their position. They referred to arguments of a purely practical nature resulting from their experience with such matters.
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