Archive for: Art. 8(3) TMA

Trade mark law, case II GSK 1563/11

October 30th, 2012, Tomasz Rychlicki

The Voivodeshipp Administrative Court in Warsaw its judgment of 21 December 2010 case file VI SA/Wa 1579/10 dismissed the complaint filed by the Polish company Dimyat Polska Sp. z o.o. against the decisions of the Polish Patent Office on the refusal to grant the right of protection for the word trade mark PLISKA Z-135975 applied for the goods in Class 33 such as alcoholic beverages, wines, liqueurs, cognac, brandy, vodka, spirits. The PPO decided that the applied trade mark is devoid of sufficient distinctive character, because it does not individualise the goods on the market. The sign Pliska has no distinctive graphics, does not have any distinguishing features that would help to identify the manufacturer of the goods. Pliska is the name of the village in Bulgaria, in the Shumen district. It is not a fancy designation, but a sign informing about the geographical origin. The first figurative trade mark Pliska has been applied in the Republic of Poland in 1962 by the Bulgarian company. Since then alcohol products bearing Pliska trade mark have been introduced on different markets, among others, the Polish one. In addition, the PPO noted that the mark applied sign may contain inaccurate information, as it may cause confusion of the average consumer as to the origin of goods. The recipient who are buying alcoholic beverages bearing Pliska sign would believe that they were produced in Bulgaria. The Court agreed with the PPO and supported its view with the arguments included in the judgment of the Court of Justice of the EU of 4 May 1999 in joined cases C-108/97 and C-109/97 Windsurfing Chiemsee Produktions.

Dimyat Polska Sp. z o.o. filed a cassation complaint. The company argued inter alia that the decision in this case was issued by a person whose mother in law sat in the panel of the judges in the VAC. At the hearing before the Supreme Administrative Court, the counsel for the PPO acknowledged that the decision of the first instance in the Patent Office was issued by an expert who is daughter in law of one of the judges.

The Supreme Administrative Court in its judgment of 28 September 2012 case file II GSK 1563/11 overturned the judgment of the VAC and sent it back for further reconsideration. The SAC held that despite the merits of the cassation complaint, there was a condition of nullity of the proceedings. The Polish Act on Proceedings Before Administrative Courts states that a judge is excluded in deciding a case in matters that concern his or her relatives in a straight line and in-laws to the second degree. In the present case, the mother-in-law is a first-degree relationship. The institution of exclusion of a judge is a procedural guarantee which consist of the impartiality of the judge that is identified with objectivity of the proceedings. The impartiality of judges is this kind of value for which the protection and execution is particularly important in a democratic state of law. Such defined impartiality should be identified with objectivity that is expressed in the equal treatment of the parties of any proceedings, so that there is no favorable situation for any of them. The court proceedings must be conducted in such a way that there is not even an apparent impression of behavior that would be deemed as disregard of standards of impartiality, being a manifestation of judicial independence.