On July 2003 the French company Bongrain S.A. from Viroflay asked the Polish Patent Office to decide on the lapse of the right of protection for APETITO (IR-615850) trade mark (the Polish Patent Office must consider whether there has been a lapse of the right of protection for a trade mark at the request of any party having a legitimate interest). The French company claimed its interest based on trade mark application to register the word trade mark APETITO (Z-204328).

The request was based on article 169(1)(i) 169(2) and 169(6) of the Polish Act of 30 June 2000 on Industrial Property Law - IPL - (in Polish: ustawa Prawo wlasnosci przemyslowej) of 30 June 2000, published in Dziennik Ustaw (Journal of Laws) of 2001 No 49, pos. 508, consolidated text on 13 June 2003, Dziennik Ustaw No 119, pos. 1117, with later changes:

1. The right of protection for a trade mark shall also lapse:
(i) on failure to put to genuine use of the registered trade mark for the goods covered by the registration for a period of five successive years after a decision on the grant of a right of protection has been taken, unless serious reasons of non-use thereof exist,
(…)

6. Where a proceeding for the declaration of the right of protection lapsed is initiated, the burden of proof that the trade mark has been used or that serious reasons for non-use of the trade mark exist shall be on the holder of the right of protection.

1. To aviod the situation of non-use of a trade mark, the use has to take place in the territory of the Republic of Poland. It has to have an unequivocal nature, as well as being real and serious, and should apply to a registered trade mark for goods and services covered.
2. The actual use of a trade mark to prevent the lapse of the right of protection should consist of affixing the mark to goods and putting of such designated goods on the market within a specified period of time. The period of time is crucial for a revocation of the right protection.
3. The preparatory steps to use the trade mark cannot be equated with the reasons to justify the occurrence of non-use of a trade mark. Taking certain preparatory steps which are without a connection with a valid reason that is preventing the use of a trade mark can not determine a dismissal of a request to decide on the lapse of the right of protection.