POSTI S.A. applied for the word-figurative trade mark “POSTI Fitea man HERBATKA WSPOMAGAJĄCA ODCHUDZANIE z owocem z czarnego bzu i anyżem doskonały smak świetny efekt” Z-334117 for foods in Classes 05 and 30. The Polish Patent Office refused to grant the right of protection. The PPO ruled that there exist similarity between applied sign and the word-figurative trade mark “fittea” R-178995 owned by “BIOFLUID” Spółka Jawna from Górki Małe. POSTI filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 5 November 2010 case file VI SA/Wa 1127/10 anulled the decision. The Court ruled that the PPO examined only verbal elements of both signs. The VAC ruled that the main distinguishing element of marked goods or services is, in principle, the word, because the recipient usually remember the sign and the marked product (service) based on the verbal element/s.

However, the principle of the dominant meaning of the word elements in the combined trade marks is fully applicable, particularly when figurative and 3D elements have less distinctive character, or are completely devoid of this ability. This judgment is not final yet.

Categories: Art. 132(2)(ii) IPL | Art. 145 IPL | distinctive character | Polish Act on Industrial Property Law | similarity of goods | similarity of services | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.