The Voivodeship Administrative Court in Warsaw in its judgment of 2 March 2006, case file VI SA/Wa 1705/05 decided on trade dress and 3D trade mark TERRAVITA R-142204. The Court ruled according to Article 30 of the Act on 31 January 1985 on Trade marks (Journal of Laws No 5, item 17 with later amendments), a legal interest to demand the invalidation of a trademark registration is afforded to an entity which derives such right from a competence to fill for trademark registration, use of a trademark or to demand the invalidation of a trademark registration for the sake of the collision with its own rights.

There is a presumption of good faith and bad faith has to be proven. There is an assumption that someone is acting in bad faith if he or she has the awareness of discrepancy of the situation with the law or as a result of his or her negligence in knowledge about the legal situation. In accordance with the well established doctrine, practice and case law, a trade mark according to article 7 and article 9(1) pt 1 and 2 of the TMA, should be examined as a whole. It is not allowed to test only one element of the complex sign, for instance the graphic, without taking into the consideration of the word elements of the sign, or doing it insufficient way. Therefore, if the Polish Patent Office examines individual elements of a sign, it should in next, to put them together and to draw the final conclusions. See also “Trade mark law, case II GSK 247/06“.

Categories: Art. 7(1) TMA | Art. 7(2) TMA | Art. 9(1)(i) TMA | bad faith | legal interest | likelihood of confusion | non-traditional trade marks | product packaging | similarity of signs | trade mark examination | trade mark invalidation | trademark law | Voivodeship Administrative Court.