In light of the recent Polish Supreme Court ruling1, trademark owners can now butter their bread on both sides when claiming hypothetical license fees from unauthorized users.

Case facts
The Polish Supreme Court (the “Supreme Court”) judgement resulted from a long-standing trademark dispute between Almar, a small-sized diary wholesaler and Mlekpol, a large dairy producer. Almar owns the
Polish national trademark “MIXEŁKO” registered in respect of edible oils, fats, and other dairy products, whereas Mlekpol puts identical products on the market under the similar trademark “MILKSEŁKO ŁACIATE”. Almar repeatedly offered Mlekpol to enter into a license agreement, so that it could legally use the contested trademark. Mlekpol persistently rejected all such offers.Given the circumstances, Almar sued Mlekpol seeking to recover unfair profits derived by Mlekpol from the unauthorized use of its trademark. The courts of both instances dismissed Almar’s claim on the grounds that…

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