Trade mark law, case II GSK 1346/10

December 13th, 2011, Tomasz Rychlicki

The Polish Patent Office invalidated the right of protection for the trade mark BIO-ACTIVE R-169823, in part for goods in Class 3, i.e. body care cosmetics. The owner BIO-ACTIVE DYSTRYBUCJA Sp. z o.o. filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 19 April 2010 case file VI SA/Wa 109/10 upheld the questioned decision and ruled that a trade mark consisting exclusively of informational signs that are normally used to designate the type of goods or services, even if those signs are in a language other than Polish, is not registrable. The Court also noted that the disputed trade mark is the so-called “internationalism”, that is a sign, which is present in other languages in almost identical form. In different languages it has the same meaning, construction reading and tone. As a result of the granting of the right of protection to the trade mark in question, all cosmetics producers except the owner were deprived of the opportunity to introduce to the market of all products bearing the term containing given information, and consumers could not be adequately informed about the characteristics of these products.

BIO-ACTIVE DYSTRYBUCJA Sp. z o.o. filed a cassation complaint. The Supreme Administrative Court in its judgment of 9 December 2011 case file II GSK 1346/10 dismissed it. The SAC ruled that widespread availability of descriptive signs and indications is in the public interest.