Trade mark law, case VI SA/Wa 369/10

July 19th, 2010, Tomasz Rychlicki

The Polish Patent Office (PPO) refused to grant the right of protection for the trade mark “100 panoramicznych” Z-241510 (in English: 100 panoramic) applied for goods in class 16 such as brochures, books, journals, magazines, titles of magazines. The PPO held that this trade mark is not sufficiently distinctive and that the sign is purely descriptive and therefore can not be covered by the right of protection. Agencja Wydawnicza TECHNOPOL Spółka z o.o. being the applicant in this case, filed a complaint.

The Voivodeship Administrative Court in Warsaw in its judgment of 11 May 2010 case file VI SA/Wa 369/10 held that secondary meaning is the result of a genuine and consistent use of a trade mark by the entrepreneur, in order to indicate in this way, the origin of the goods. The assessment of whether a sign has a secondary meaning (acquired distinctiveness) must be decided by examining all the facts such as time of use, its market share, the ways and intensity of use, and all the data showing that a given group of customers will evidently assign the sign and the goods to a particular trader. The VAC annulled the PPO’s decision and ruled as unenforceable.