The registration right regarding a 3D shape trade mark in the form of a delicje biscuit R-116211 has been invalidated

Act of 30 June 2000 Industrial property law (Dz.U. z 2023 r. poz. 1170)

link to provision: https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20010490508/U/D20010508Lj.pdf 

Article 315 Acquired rights
1. Rights conferred in respect of inventions, utility models, ornamental designs, topographies of integrated circuits, trade marks and rationalisation projects, existing at the time of entry into force of this act, shall remain effective. The previous provisions are applicable to these rights, unless the provisions of this part stipulate otherwise.
2. Legal relationships established prior to the entry into force of this Act shall continue to be governed by the previous provisions.
3. Statutory requirements for the grant of a patent, a right of protection or a registration right shall be assessed under the provisions effective at a date of filing with the Patent Office of an application concerning an invention, a utility model, a trade mark or topography of an integrated circuit. However, the provision of Article 37(2) shall apply to patent and utility model applications pending at the date of entry into force of this act.

The judgment of the Voivodeship Administrative Court dismissed the complaint against the decision by which the Polish Patent Office invalidated the registration right to the 3D shape mark delicje. In relation to delicje biscuits, the said 3D shape mark cannot perform the function of a trademark. Indeed, the trade mark cannot be identified with the goods themselves.