Polish IP & IT law » 2006

Archive for: November, 2006

Polish Patent Office, case II SAB/Wa 99/06

November 25th, 2006, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in a judgment of 24 November 2006, case file II SAB/Wa 99/06, ruled that the public authorities or other bodies performing public functions, in particular the public offices and departments, are required to make public information available in accordance with provisions of article 4(1) point 1 of of the the Polish Act of 6 September 2001 on access to public information – API – (in Polish: Ustawa o dostępie do informacji publicznej) Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with later amendments.

Therefore, there was no doubt for the VAC that in the light of the aforementioned regulation, the Polish Patent Office is the entity obliged to follow the provisions of the API. However, it was also undisputed, that the rules and the procedure on the access to documents including trade mark applications are governed by the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No. 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with later amendments, served as the basis for the decision to refuse to grant a right of protection.. The provisions of the IPL will constitute lex specialis in relation to the API.

Trade mark law, case VI SA/Wa 1420/06

November 11th, 2006, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 31 October 2006, case file VI SA/Wa 1420/06 held that while examining whether the rights of protection may be granted, it should be determined whether a sign could serve as a trademark at all. Only after it was decided that a sign could be a trademark, one should examine whether a mark is sufficiently distinctive and therefore to check whether the sign is suitable for distinguishing the specific goods in trade, to designate of which it has been applied for. The lack of distinctive character of a trade mark is considered as the absolute grounds for refusal to trade mark registration, but a sign may acquire distinctive character as a result of use.

The Court found it difficult to say that red color combined with different kinds of equipment and tools, or accessories used in construction is something extraordinary, unique and unprecedented, which could stick decisively in the memory and let the consumer individualize the goods in the market among the goods of the same type but originating from different companies. This judgment concerned separate Color RED Pantone C32, IR-803195.