Trade mark law, case Sp. 207/10

May 21st, 2011, Tomasz Rychlicki

On 27 May 2008, the Polish Patent Office registered the word-figurative trade mark FORTUNA WARZYWNA KAROTKA STANOWCZA Z TABASCO I KOLENDRÄ„ R-209338. This sign was applied for by the Polish company Agros Nova sp. z o.o. from Warsaw for goods in class 32 such as juices, nectars and vegetable beverages, multi-vegetable nectars and vegetable beverages with the addition of micro and/or macroelements and/or vitamins and/or substance supporting the metabolic processes and/or flavorings, spices and herbs, sports and energy drinks, products for production of beverages: extracts, essences and concentrates, seasonings, and syrups, instant drinks.

Mc Ilhenny Company filed a request for invalidation of Agros’ trade mark. Mc Ilhenny is the owner of the word trade mark TABASCO R-51500 registered with the earlier priority of 24 March 1973, in class 30 for pepper sauce.

The Adjudicative Board of the PPO in its decision of 11 May 2011 case no. Sp. 207/10 dismissed the request. The PPO ruled that there is no likelihood of confusion between both trade marks because Agros’ trade mark is a label with rich graphics, where the words “karotka” and “fortuna” are located in a central position, and the word “Tabasco” is placed below and it’s not a dominant element of the whole sign. It only appears at the bottom of the label, and is written in a small font. This decision is not final yet. A complaint can be brought to the Voivodeship Administrative Court in Warsaw.