Trade mark law, case II GSK 114/07

December 11th, 2007, Tomasz Rychlicki

Clinique Laboratories, LLC, the owner of the word-figurative trade mark C CLINIQUE R-51732 requested the Polish Patent Office to decide on the lapse of the right of protection for the word-figurative trade mark CLEANIC’ R-95489 owned by the Polish company HARPER TRADE Sp. z o.o. Clinique Laboratories justified its legal interest by the fact that, at the time of filing the request, the company was deprived of full access to its earlier Polish trade mark registration because the later trade mark invaded its scope of protection with regards to goods in Class 3, mostly cosmetics. Further arguments raised included that the right to business activity freedom, protected by the Polish Constitution and Article the Polish Act on Business Activity.


The PPO decided on the lapse of the right of protection. HARPER TRADE Sp. z o.o. filed a complaint against this decision. The Voivodeship Administrative Court in its judgment of 16 October 2006 case file VI SA/Wa 770/06 dismissed it. HARPER TRADE Sp. z o.o. filed a cassation complaint.


The Supreme Administrative Court in its judgment of 21 November 2007 case II GSK 114/07 repealed the contested judgment and the decision of the PPO, deciding that the interest specified by the owner of an earlier trade mark was not a legal interest, as defined by the Administrative Procedure Code, because it was not current but, at most, a future interest connected to events that may not happen, because the owner of the later unused trade mark may not decide to produce cosmetics in Class 3 and never trespass upon the scope of protection of the earlier mark. The Court also concluded that the provisions of the Polish Constitution and the Act on Business Activity were too vague to constitute a real legal interest.