According to the judgement of the Supreme Administrative Court of January 5, 2017, Ref. No. II FSK 3635/14, pursuant to art. 16b sec. 1 item 6 of ITOP, it should be assumed that the term “acquired” used therein means that the taxpayer acquired the protection right for the trademark by means of a constitutive decision of the Patent Office.

The above judgement was issued in the light of the following factual circumstances. A company engaged in design, manufacture and sale of medicinal and cosmetic products submitted a request for issuance of an individualized interpretation, asking whether in the case of the rights acquired through submission of a trademark filed at the Patent Office, the depreciation may take place no sooner than upon acquisition of the protection rights for the trademark and introduction of the acquired protection right to the register of non-tangible and legal assets?

The Company pointed out that, with regard to art. 16b sec. 1 item 6 of ITOP, there is no legal basis in the aforementioned situation to deny the right to depreciate the protection rights acquired through the constitutive decision of the Patent Office for the trademark.

The Minister of Finance considered the company’s standpoint wrong, focusing on the manner in which the acquisition of the trademark protection rights was done, pointing out that the prerequisite of “acquisition” was not fulfilled. In the opinion of the Minister of Finance there was no “acquisition” but “production” of the trademark by the company.

The company appealed the interpretation to the Regional Administrative Court (WSA), which ruled for the company.  In the opinion of the First Instance Court, the acquisition of the protection right by means of a constitutive decision of a competent authority constitutes an “acquisition” of this right.

The Minister of Finance appealed for cassation to the Supreme Administrative Court in Warsaw (hereinafter referred to as NSA). The NSA dismissed the cassation appeal as having no justifiable basis, explaining beforehand that the proper settlement of this case in this situation is dependent on the correct interpretation of art. 16b sec. 1 of \ITOP. This is, namely, about the term “acquisition of a right suitable for economic use on the day of acceptance for use” – used in the Act of 30.6.2000 – Industrial Property Right (Journal of Laws of 2003, No. 119, item 1117 as amended, hereinafter referred to as: “PrWłasPrzemU”).

It should be emphasized that the above fits into the established jurisdictional view expressed in previous judgements of the NSA and the Regional Administrative Court (cf. judgement of the NSA of 10.3.2015, II FSK 312/13, judgement of the NSA of 30.1.2014, II FSK 400/12, judgement of the Regional Administrative Court in Kraków of 14.11.2014, I SA/Kr 1120/14).