Trade mark law, case VI SA/Wa 227/07

September 15th, 2007, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 13 April 2007 case file VI SA/Wa 227/07 interpreted the provisions of Article 129(2)(ii) of 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 subsequent amendments.

2. Subject to Article 130, the following shall be considered as being devoid of sufficient distinctive character:
(ii) signs which consist exclusively or mainly of elements which may serve, in trade, to designate the kind, origin, quality, quantity, value, intended purpose, manufacturing process, composition, function or usefulness of the goods.

The Court ruled that Article 129(2)(ii) of the IPL, refers to purely descriptive signs, i.e., characters that the direct and sole function is to provide information about the goods and not on its origin. The distinctiveness of the mark is the fact that the sole and direct information is information which indicates the characteristic of the goods. These signs that may constitute a determination of such characteristics only in a way of indirect conclusion, do not have the descriptive nature. The promotional message of the sign never itself makes it non distinctive, as well as the unoriginal slogan does not decide by itself about the lack of its distinctiveness. This case concerned the registration proceedings of word trade mark “ZAKUPY U NAS WEJDĄ CI W KREW” R-219731 (in English: Shopping with us you will come in the blood) owned by Polish company RAMPEX K. Termin T. Termin Spółka Jawna from Tychy.