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Archive for: Art. 132(2)(ii) IPL

Trade mark law, case Sp. 500/11

January 30th, 2012, Tomasz Rychlicki

On July 2008, Barbara Hildman requested the Polish Patent Office to invalidate the right of protection of the word-figurative trade mark BIKINI CHRISTIAN DIOR PARIS R-175224 owned by Parfums Christian Dior from Paris, and registered for goods in Class 03 such as body and face care products. Barbara Hildman argued that BIKINI CHRISTIAN DIOR PARIS R-175224 is similar to the trade mark BIKINI R-124158 registered with an earlier priority.

R-175224

Parfums Christian Dior admitted that the trade mark at issue was registered for similar range of goods, but the disputed sign has other distinctive elements such as CHRISTIAN DIOR and a colorful label, which proves that there is no risk of consumers’ confusion. Moreover, the Company argued that the contested mark containing the element CHRISTIAN DIOR is produced and marketed by the producer of luxury goods and it is basically identical to the well-known and reputable company name of the holder – Parfums Christian Dior. These products, as exclusive goods, are always sold at exposed places clearly marked with the company name “Christian Dior”, which reduces to zero the possibility of confusion with cosmetic products to other companies.

The Adjudicative Board of the Polish Patent Office dismissed the request. PPO decided that there is no likelihood of confusion, also, because the questioned trade mark is a carrier of the allure, prestigious image and aura of luxury. The combination of the weak trade mark BIKINI with a strong and recognizable sign CHRISTIAN DIOR PARIS, completely eliminates the risk of confusion between the compared trade marks by the oriented and attentive consumer.

Barbara Hildman filed a complaint against this decision. She argued that merging of the word BIKINI with the words “CHRISTIAN DIOR PARIS” and a graphic element, is like appropriation of someone else’s trade mark. The creation of trade marks by adding to them a company name and its seat distorts the nature and function of a trade mark, because each sign could be easily imitated, only adding a company name to such a sign, and in that case the registration of the earlier mark would be quite superfluous and without legal significance.

The Voivodeship Administrative Court in Warsaw in its judgment of 13 May 2011 case file VI SA/Wa 41/11 repealed the contested decision and returned it to the PPO for further reconsideration. The Court ruled that the PPO did not properly examine the similarity of goods. There were no comparison on „which shelf” these identical goods are placed and who is their recipient, which in consequence it does not exclude the risk of association of the earlier trade mark with the later one. The Polish Patent Office did not consider that the necessary condition for the likelihood of confusion is at least the minimum similarity between compared trade marks. The lack of examination of this condition would mean that the company Christian Dior, or any other reputable or well-known company – due to its brand recognition, is granted the possibility to “append” to a recognizable name, or names – of any signs that are protected with earlier priority, and presenting it as their own. This would also mean illusory protection for an earlier trade mark in a situation where the reputable sign would build the family of marks, without prejudice to its recognition, just by adding a known company name or surname to any sign. In any of such cases, the appropriation by the prestigious brand of less known earlier trade marks, would show that their position and earlier protection do not apply and such protection has not been given any legal effect, and each of such a character – compared with the prestige trade mark, would have been assessed as having weak distinctive ability.

The Polish Patent Office in its decision of 19 January 2012 case Sp. 500/11 invalidated the right of protection for the trade mark BIKINI CHRISTIAN DIOR PARIS R-175224.

Trade mark law, case VI SA/Wa 586/11

January 2nd, 2012, Tomasz Rychlicki

The Polish Patent Office refused to grant the right of protection for the word-figurative trade mark @ @lfanet Z-331247 applied for by @ALFANET Marcin Małolepszy from Borowo Kolonia for for goods and services in Classes 09, 37, 38, 42 and 45.

Z-331247

The PPO decided that the applied trade mark is similar to the word trade mark ALFANET R-145012 registered with the earlier priority for the Polish company ALPHANET sp. z o.o. for services in class 38. The PPO did not agree with the applicant that ALFANET sign has weak distinctive character. Although the ending “net” is not distinctive for services related to the IT industry, but combined with the word “alpha”, it creates a neologism, which can be deemed as a fanciful sign.

Mr Małolepszy filed a complaint against the decision of the PPO, arguing that grant of a right of protection for a trade mark in respect of specific goods should not constitute an autonomous ground for refusal to grant a right of protection for a trade mark in respect of the goods identical or similar to those of another undertaking for a sole reason that the trade mark contains an identical or similar sign which refers to personal interests, in particular the owner’s name.

The Voivodeship Administrative Court in Warsaw in its judgment of 24 June 2011 case file VI SA/Wa 586/11 dismissed the complaint and held that the argument that the applicant relied on is an exception to the rule of inadmissibility of the coexistence of similar signs, and as such can not be broadly interpreted, and it should be applied with caution, taking into account not only the ratio legis, but also the principles provided in the Polish Industrial Property Law, that relate to trade marks and their basic functions. Although the provisions of Article 135 of the IPL, in contrast to previous regulations, do not include the condition that the applied trade mark should not be misleading, but, in the opinion of the Court, the interpretation that would lead to the registration of two identical or similar trade marks for identical goods and/or services, could not be accepted.

Trade mark law, case VI SA/Wa 723/11

December 28th, 2011, Tomasz Rychlicki

In 2007, the Polish Patent Office registered the word-figurative trademark citibank handlowy R-190720, for the American company Citibank, N.A., a National Banking Association. In 2008, Citigroup Inc. applied for the word trade mark CITI HANDLOWY Z-337716.

R-190720

The Polish Patent Office refused to grant the right of protection, despite the fact that Citibank N.A. is the sole shareholder of the Citigroup Inc., and Citigroup Inc. provided a letter of consent from its parent company. The PPO decided that both signs would mark very similar goods and services and are directed to the same audience. There is also visuall similarity, caused by common elements. The PPO noted that it is not obliged to take into account the letter of consent issued by Citibank, N.A. Citigroup Inc. filed a complaint against this decision.

The Voivodeship Administrative court in Warsaw in its judgment of 9 December 2011 case file VI SA/Wa 723/11 dismissed it. The Court held that the PPO correctly examined all evidence and properly decided on the similarity of signs. The VAC noted that that letters of consent may be evidence in proceedings, but they do not bind the PPO. The VAC pointed to the judgment of the Supreme Administrative Court of 20 December 2007 case file II GSK 279/07. The SAC held that a letter of consent cannot be used as ground to register a trade mark since the Republic of Poland did not implement Article 4(5) of the First Council Directive 89/104.

Trade mark law, case VI SA/Wa 334/11

December 13th, 2011, Tomasz Rychlicki

Julius Sämann Ltd., the owner of the figurative trade mark WUNDERBAUM IR-0579396, filed a notice of opposition to a final decision of the Polish Patent Office on the grant of a right of protection for the word-figurative trade mark Forest Fresh R-183901 owned by S&S Smiczek & Smiczek Hanna Smiczek. Both trade marks were registered for similar goods in Class 5, mainly air freshening products. Julius Sämann Ltd. claimed that because of the similarity of goods there is a risk of misleading the public, in particular by evoking associations with the earlier mark. The company provided also evidence on reputation of its trade mark.

iR-0579396

The Polish Patent Office invalidated the right of protection. The PPO decided that three required conditions had to be cumulatively met in this case: i) the reputation of the earlier mark, ii) the similarity or identity of signs, iii) if it without due cause would bring unfair advantage to the owner of the later trade mark or be detrimental to the distinctive character or the repute of the earlier trademark. The PPO noted that the case law distinguishes between absolute and relative methods of assessing reputation. The first one considers knowledge of the mark and takes into account primarily the percentage of a certain degree of its recognition on the market. The relative method emphasizes different criteria, including the degree of the recognition of the trade mark, the market share in terms of quantity and value of goods sold, the extent and duration of product advertisements marked by the sign, territorial and temporal scope of its use, licenses granted, quality of the goods, the value of the sign in the evaluation of independent financial institutions, the size of expenditures incurred in connection with the promotion of trade, as well as relationship price of substitute goods. The evidence material can be public opinion polls, prizes and awards, press releases, ratings, reports, invoices and other commercial documents, as well as various promotional materials. The Polish Patent Office has adopted a mixed methodology in this case, and ruled that both the evidence on reputation, that was claimed and established before the date of application of the contested trade mark, as well as documents from the later period, strengthen the recognition of reputation of the trade mark WUNDERBAUM IR-0579396. The PPO decided that both trade marks are similar in visual, aural and conceptual aspects. The PPO noted that the market existence of a trade mark which consumers associate with reputation of another sign, harm the interest of the owner. S&S Smiczek & Smiczek Hanna Smiczek filed a complaint against this decision.

R-183901

The Voivodeship Administrative Court in Warsaw in its judgment of 2 June 2011 case file VI SA/Wa 334/11 dismissed it. The Court agreed with the the assessment of the PPO, and repeated that an entrepreneur, who for the goods of the same type, chooses a sign that is similar to a trade mark with earlier priority, given that there is an infinite number of signs to be selected, acts at its own risk. This judgment is not final yet. A complaint can be brought to the Supreme Administrative Court.

Trade mark law, case VI SA/Wa 1236/11

December 6th, 2011, Tomasz Rychlicki

LEK, tovarna farmacevtskih in kemicnih izdelkov filed a notice of opposition to a final decision of the Polish Patent Office on the grant of a right of protection for the word trade mark KETOGEL R-190416 registered for Polpharma S.A. for goods such as pharmaceuticals. LEK argued that KETOGEL is similar to its word trade mark KETONAL. The PPO dismissed the opposition, and LEK filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 7 September 2011 case file VI SA/Wa 1236/11 dismissed it. The court noted that in case of the assesment of similarities between trade marks, the number of syllables, their sound and touch have the importance in deciding on phonetic similarity. Visual similarity is assessed in terms of number of words or letters in general, the number of words or letters of the same type, their shape, layout and color. Consequently, a sign containing an altered distinctive element, even if there is some resemblance to other parts, will not be similar. The Court took into account the specificity of the pharmaceutical market, and excluded the likelihood of confusion in this case.

Trade mark law, case VI SA/Wa 875/11

October 27th, 2011, Tomasz Rychlicki

Juliusz Marek Nabiałek who owns the word-figurative trade mark Platan R-210901, filed a request for invalidation of the word-figurative trade mark PLATANUS OGRODY NATURALNE R-210602 registered for Przemysław Sochański. Mr. Nabiałek claimed that both signs are similar and cause the risk of misleading the public as to the origin of goods and services, especially since most goods and services are identical.

R-210901

Mr. Sochański claimed that he cooperated with Mr. Nabiałek in years 2001-2005. He emphasized that Mr. Nabiałek, without his knowledge or consent registered the trade mark Platan in 1995, but it was the name of a company that was founded by Sochański. In March 2007, he learned about this registration when he was served with the cease and desist letter prohibiting the use of the name Platan. Therefore, Sochański applied on 15 March 2007, for the right of protection for PLATANUS OGRODY NATURALNE trade mark. Therefore, he thought that the request for invalidation is a malicious and solely personal action. Mr Nabiałek decided to narrow the request only for services in Class 42 such as services in architecture, biological research, advice on environment protection. The Polish Patent Office invalidated the right of protection. Sochański filed a complaint against this decision.

R-210602

The Voivodeship Administrative Court in Warsaw in its judgment of 3 October 2011 case file VI SA/Wa 875/11 overturned the decision of the Polish Patent Office and held it unenforceable. The Court ruled that both trade marks are not similar and the similarity of goods and services is reduced only to their common numbering according to the Nice Classification. The VAC ruled that there was violation of the provisions of the administrative procedure, because the PPO did not consider all of the evidence required to decide the case, and has not indicated why certain facts were accepted as proven, and why others were denied the credibility and probative value.

Trade mark law, case VI SA/Wa 262/11

October 2nd, 2011, Tomasz Rychlicki

The Polish Patent Office refused to recognize the protection of the FERRERO OPERA IR-0891152 trade mark owned by SOREMARTEC S.A. The PPO decided that there are already registered similar or identical trade marks owned by Ferrero S.p.A.

SOREMARTEC argued that there is no real risk of misleading the public as to the origin of goods bearing signs question, due to the fact that these trade marks are owned by closely related companies, and the goods are produced by all companies according to uniform quality standards. The Company presented documents confirming relationship between the companies, and submitted also a letter of consent.

The PPO agreed that there are regulations on letters of consent provided in the Polish Industrial Property Law. According to this provisions the owner of a lapsed trade mark may agree for a registration of a new trade mark, but the Polish legislator did not foresee similar rules relating to the signs remaining in force. However, and this is not a legal loophole. This rule is clear and there are no doubts. There’s an exception to that rule but it is very limited and it should not be interpreted broadly. As the PPO noted this is a classic example of a positive-negative regulation that is used in the legislation. As a contrario interpretation, Article 133 of the IPL sets two standards: a positive – that permits registration of the trade mark after obtaining the consent of the owner of an earlier mark that has lapsed, and negative – it does not allow for consent letters for the other collision (i.e. with signs of remaining in force, renown, reputed signs, etc.).

Article 132
1. A right of protection shall not be granted for a trade mark in respect of identical or similar goods, if the trade mark is identical or similar to:
(iii) a trade mark earlier registered in the Republic of Poland, whose registration has terminated, provided that an interval between the date of lapse of the right of protection for the trade mark and the date on which a similar trade mark has been applied for by another party, is, subject to Article 133, no longer than two years.

Article 133
The provision of Article 132(1)(iii) shall not apply where the protection has terminated under Article 169(1)(i) or the right holder of the earlier right has given his consent for the later trade mark being granted a right of protection.

The Supreme Administrative Court in its judgment of 20 December 2007 case file II GSK 279/07 supported this interpretation. The SAC ruled that the provision of Article 4(5) of the First Council Directive 89/104 has not been implemented into Polish law, and it was futile to rely on the infringement of this provision, because such a consent has not the legal effect under Polish law. See “Trade mark law, case II GSK 279/07“. The examination system was adopted for the registration of trade marks in Poland. Letters of consent do not eliminate the risk of consumers’ confusion as to the origin of goods. This fact must therefore be taken into consideration during the examination of applied trade marks. The sign has to distinguish one entrepreneur from another entrepreneurs. The capital group is the association of many entrepreneurs linked to each other in different ways. If the goods are actually marketed by such a group and do not cause the confusion of consumers, the institution of a joint right of protection. The obligatory regulations governing use of trade marks adopted by the undertakings who have jointly applied for the trade mark protection, ensures that the signs will not be misleading at the time of filing the trade mark application, but also during their existance on the market. However, one can not assume in advance that the signs coming from companies that are linked organizationally and financially do not mislead consumers. There always will be a risk of consumers’ confusion. During the application proceedings, it is not possible for the PPO to examine the policy of big companies in order to identify the origin of each product offered. Therefore, if a number of separate legal entities want to use a similar trade mark, they must, in accordance with Polish law, to use the institution of a joint right of protection or simply trade mark licenses. There is no legal justification to treat the origin of signs from companies linked organizationally and financially as a guarantee of the absence of the risk of consumers confusions as to the origin of these goods.

The Voivodeship Administrative Court in its judgment of 17 May 2011 case file VI SA/Wa 262/11 overturned the decision of the Polish Patent Office and held it unenforceable. The VAC agreed with the PPO that in principle, the mere letter of consent that was issued by a company that was unrelated organizationally and/or legally with entitled to the trade mark application, is not a basis for registration of a mark identical or similar. However, this document was not the only document on which SOREMARTEC relied to demonstrate the lack of the risk of conumers’ confusion. When examining the collected evidence material the PPO completely ignored the fact that the applicant has a number of trade marks with the word element “Ferrero” including signs from the earlier priority than the opposed trade marks. In addition, the VAC noted that SOREMARTEC owns trade marks containing the “Ferrero” element which were registered by the PPO on the basis of letters of consent.

Tax law, case I SA/Po 210/11

September 26th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Poznań in its judgment of 28 Jue 2011 case file I SA/Po 210/11 held that a subsidiary company is allowed to depreciate trade marks that were transferred to it as an apportionment, starting from the first day of a month, after one month the Polish Patent Office has granted the right of protection for these signs.

Trade mark law, case VI SA/Wa 1901/10

July 15th, 2011, Tomasz Rychlicki

The Polish Patent Office invalidated the right of protection for the word-figurative trade mark VILLA PARK WESOŁA R-171029 owned by “VILLA PARK WESOŁA” Spółka z o.o. The request was filed by MPM PRODUCT Spółka z o.o. the owner of the word trade mark “villa park” R-139436 that was registered with an earlier priority. MPM filed also a civil suit against “VILLA PARK WESOŁA” Spółka z o.o. claiming the infringement of its trade mark rights. However, the court dismissed the injunction.

R-171029

“VILLA PARK WESOŁA” Spółka z o.o. decided to file a complaint against the decision of the PPO. The Company claimed inter alia that even a civil court shared the company’s argument stating that there is no risk of confusion in a group of relevant recipients of services bearing the trademarks at issue.

The Voivodeship Administrative Court in Warsaw in its judgment of 24 March 2011 case file VI SA/Wa 1901/10 dismissed the complaint and ruled that, undoubtedly, the Polish Patent Office, while considering the specific case at issue, acts under certain laws and regulations. In such situation one must understand that the PPO does not decide on the case based upon the judgments of the courts. This, of course, does not mean that if the specific circumstances of the case allow for taking into account the judgment, the Patent Office may not decide on a case in accordance with a convergent judicial decision issued in a similar case. This judgment is not final yet.

Trade mark law, case VI SA/Wa 112/11

July 7th, 2011, Tomasz Rychlicki

Sfinks Polska S.A. from Łódź requested the Polish Patent Office to invalidate the rights of protection for word-figurative trade marks CLEOPATRA R-153234 and R-179260 owned by Restauracja CLEOPATRA Bachar Aziz from Lublin. Sfinks Polska is the owner of the earlier registered word-figurative trade mark SPHINX R-105162.

R-105162

Sfinks claimed that the trade mark CLEOPATRA R-153234 is similar to its trade mark and argued that it has legal interest in this proceedings as there is a possibility of misleading customers based on the similarity of trade marks. This may be particularly applicable considering the fact that SPHINX trade mark is already known on the market and, therefore, it has a stronger distinctive ability. Sfinks also argued that Bachar Aziz filed its trade mark in bad faith with an intent to use the reputation of Sfinks’ trade marks by suggesting a common origin from a single entity.

R-179260

Bachar Aziz requested the PPO to dismiss the case. He argued the Sfinks lacks legal interest in the invalidation proceedings. Moreover, he noted that the signs, in this case, are different conceptually and phonetically. The characters are not visually similar, the earlier trade mark has the form of a sphinx (face of a man resembling an ancient sculpture) and the sign in question shows a woman’s face (Cleopatra). Mr Aziz also noted that designation of the same services by these trade marks is not sufficient to determine the risk of common origin. In this regard, he relied on the collision-free existence of the two signs on the markets in Płock and Łódź. He pointed that other businesses use the representation of the Sphinx to designate their restaurants.

R-153234

The Polish Patent Office in its decision case Sp. 396/08 dismissed the request. The PPO held that the trade marks, in this case, are different in all aspects. While assessing the risk of confusion of the recipients of the services offered by the parties to the proceedings, the PPO ruled that customers of restaurants do not act on impulse as shoppers do. When choosing the restaurant they base their actions on good knowledge of the place, recommendation or advertising, so, first of all, they choose a place based on the name, thus, it is the verbal layer of a trade mark (the name of restaurant), not the graphic element, that will be critical to their selection. Sfinks filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 16 June 2011 case file VI SA/Wa 112/11 overturned the decision of the Polish Patent Office and held it unenforceable based on entirely different circumstances that one could expect. At the hearing before the Court on 3 June 2011, Sfinks’s trade mark attorney argued that she was not present at the hearing on 16 June 2010 in the Polish Patent Office on the ground that the notice of the hearing was set at 11:00 a.m. and a hearing was held on at 10:00 a.m. Therefore, Sfinks could not be represented properly, as its representative was not able to submit evidence. The Court held that Sfinks did not participate in proceedings through no fault of its own and such situation was a violation of the provisions of the Polish Administrative Proceedings Code. The judgement is not final yet.

Trade mark law, case VI SA/Wa 2623/10

June 15th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 20 April 2011 case file VI SA/Wa 2623/10 ruled that, during proceedings for invalidation of the right of protection for trade mark, the applicant should be required to participate actively in evidence proceedings. It should be also noted that in the literature and the case-law on the grounds of general administrative proceedings, it is assumed that the party is not exempted from the obligation to participate actively in the process of gathering evidence, particularly when not proving certain actual circumstances can lead to results unfavorable to the party.

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 KOLENDRĄ 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.

Trade mark law, case Sp. 352/08

April 29th, 2011, Tomasz Rychlicki

Prywatne Biuro Podróży Sindbad Ryszard Wójcik from Opole, requested the Polish Patent Office to invalidate the word-figurative trade mark SINDBAD HOTELE R-172657 registered in Class 40 and 43 for services such as photographic film development and printing and accommodation and reservations, and owned by Przedsiębiorstwa Handlowo-Usługowego Sindbad s.c. Michał Ząbroń, Roman Mandyna from Kraków. Ryszard Wojcik is the holder of the word-figurative trade mark SINDBAD R-77988 registered with the earlier priority in Class 35 and 39 for services such as transporting of passengers and goods by car, organization of tourist trips, travel agencies and advertising agencies.

R-172657

The Adjudicative Board of the PPO in its decision of 18 April 2010 case no. Sp. 352/08 invalidated the right of protection. The PPO held that there exists similarity of the signs and services. As for services, the PPO said that accommodation and travel agency services are related. This decision is not final yet. A complaint can be brought to the Voivodeship Administrative Court in Warsaw.

Trade mark law, case VI SA/Wa 1860/10

April 21st, 2011, Tomasz Rychlicki

On 20 December 2006, the Polish Patent Office granted the right of protection for the word trade mark O’LEARY R-180416 applied for by Piotr Kasprzycki PPH Eveline Cosmetics from Lesznowola for goods in Class 03 such as skin, hair and body care products for children, women and men, mascaras, creams, lotions, shampoos, soaps, gels baths, creams and gels, cosmetics, perfumery, and cleansing tissues and goods in Class 05 such as medicinal cosmetics.

R-65340

French company L’OREAL Societe Anonyme filed a request for invalidation. L’Oreal owns the word trade mark L’OREAL R-42203 registered with the earlier priority of 5 May 1960 for goods in Class 03 such as perfumery and cosmetics, toilet soaps, lipsticks, products for oral care, hair coloring agents, shampoos. The Company also owns the word-figurative trade mark L’OREAL STUDIO LINE R-65340 registered with the priority of 24 November 1988 for goods in Class 03. The French company argued that its trade marks are well-known and reputed. It presented a survey of consumers in the years 2001-2003, which proved the knowledge of the brand and consumer trust in the products. L’OREAL was the brand that has won numerous awards. The company argued that some of the goods are identical other are similar and raised an argument that the trade mark application was made in bad faith. The company relied on the judgment of the French court, which forbade the company that was created by Piotr Kasprzycki in France, the violations of trade marks and company name of L’Oreal, by the use of the name O’LEARY. L’OREAL also claimed the company created by Mr Kasprzycki was fictitious becuase its capital was 1 euro.

R-151141

O’LEARY argued that its trade Mark Has Irish origins and the average consumer is reasonably well informed and reasonably observant and circumspect. O’LEARY admitted that L’Oreal is a strong and very distinguishable brand and the consumer who buys these cosmetics will not pay attention to the other cheaper products. O’LEARY noted that since the French court judgment has been appealed, so the case has not been finally decided. In its opinion, the proceedings in France is not relevant in the proceedings before the Polish Patent Office.

The Adjudicative Board of the PPO in its decision of 16 March 2010 case no. Sp. 251/08 invalidated the right of protection for the trade mark O’LEARY. The PPO ruled that O’LEARY is confusingly similar to L’OREAL. Piotr Kasprzycki PPH Eveline Cosmetics filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 12 April 2011 case file VI SA/Wa 1860/10 agreed with the PPO and dismissed the case. The judgment is not final yet. The cassation complaint can be brought before the Supreme Administrative Court.

Trade mark law, case VI SA/Wa 1850/10

March 28th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 18 January 2011 case file VI SA/Wa 1850/10 noted the trade mark law of Western countries has developed the principle that in the event of a conflict between two signs all doubts should be decided in favor of the owner of a trade mark with the earlier priority. This principle is a simple consequence of the belief that the entrepreneur who choose a trade mark that will be used for marking the same type of goods and that is similar to the mark with an earlier priority, is acting at his or her own risk and all uncertainties should be decided against him/her.