Przedsiebiorstwo Przemyslu Spirytusowego Polmos in Warszawa objected to the trade mark application for SPIRYTUS REKTYFIKOWANY PL 1784, R-134685, filed by POLMOS LANCUT SA. Polmos in Warszawa claimed priority of an earlier trade mark – SPIRYTUS REKTYFIKOWANY, R-63628.

SPIRYTUS REKTYFIKOWANY was bought by Polmos in Warsaw during an auction held by the Polish Ministry of the Treasury. All Polmos companies agreed in 1999 that they would not use trade marks owned by others in the Polmos “group”.

The Polish Patent Office (the PPO) decided that the contested mark had no distinctive character and it only indicated a specific kind of alcohol and method of production. Przedsiebiorstwo Przemyslu Spirytusowego Polmos in Warszawa lodged a complaint before the District Administrative Court in Warsaw seeking to annul the PPO’s decision. However, the Court sided with the PPO’s findings and rejected the complaint. The Court held that both signs were word-figurative marks and should be perceived and examined as whole.

Polmos in Warszawa filed a cassation complaint before the Supreme Administrative Court in Warsaw. It supported its position with an argument that SPIRYTUS REKTYFIKOWANY acquired secondary meaning and had a good reputation bacause of the use during the course of trade. The Supreme Administrative Court in its judgment of 18 June 2008, case file II GSK 185/08 did not agree with such statements and rejected the complaint. The Court found that Polmos in Warszawa was seeking exclusive rights in the spirytus rektyfikowany sign, which was a purely informative term to be found in Polish dictionaries and official norms.

This case is the leading example of problems with trade mark portfolios of companies that were privatized in Poland after 1990. Polmos was state-owned monopoly, controlling the Polish market of spirits and other alcohols from middle ’20s until 1990, when it was divided and privatized into several independent companies.

Categories: absolute grounds for refusal | acquired distinctiveness | Art. 129(2)(ii) IPL | Art. 131(1)(iii) IPL | Art. 131(3) IPL | Art. 29 TMA | Art. 9(1)(i) TMA | distinctive character | likelihood of confusion | Polish Supreme Administrative Court | secondary meaning | similarity of signs.