Trade mark law, case VI SA/Wa 1705/05

March 11th, 2006, Tomasz Rychlicki

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 owned by Terravita Holding Establishment. The Court ruled that according to the provisions of Article 30 of the Act on 31 January 1985 on Trade marks (Journal of Laws No 5, item 17 with subsequent 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 trade mark registration, use of a trade mark, or to demand the invalidation of a trade mark registration for the sake of the collision with its own rights.

R-142204

The Court also noted that there is a presumption of good faith and bad faith, and it 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 figurative element, without taking into the consideration of the word elements of the complex sign, or doing it insufficiently. Therefore, if the Polish Patent Office examines individual elements of a sign, it should in next, put them together and draw the final conclusions. See also “Trade mark law, case II GSK 247/06“.