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Archive for: Polish Administrative Proceedings Code

Procedural law, case VI SA/Wa 934/10

October 12th, 2010, Tomasz Rychlicki

In 2006, the Polish legal advisor (radca prawny) Sławomir Reszka from Warsaw applied for the right of protection for KHORTYTSA CHORTYCA Z-311311 and BLAGOV BLAGOFF Z-311312 trade marks for goods in Class 33 such as alcoholic beverages. During the examination proceedings, the Polish Patent Office has found almost identical signs such as word trade mark BLAGOV R-218323 and word-figurative trade mark KHORTYTSA ULTIMATE PERFECTION R-219919 owned by the Ukrainian company – the affiliate “Image Holding” of the JSC “Image Holding ApS” from Novoe Zaporozhye, that were also registered for alcoholic beverages. The Ukrainian company argued that it had used its trade marks previously in Poland and that these signs are still used in Ukraine. The PPO refused to grant the right of protection for Sławomir Reszka.

R-219919

Decisions of the Polish Patent Office are liable to a party’s request for re-examination of the matter within the meaning of the Administrative Proceedings Code. The provisions of the APC governing deciding on appeals from decisions shall apply accordingly to proceedings on re-examination of the matter. In this particular case, the PPO found that the illness did not entitled Sławomir Reszka for the restoration of the deadline because he had a representative. As a basis for denying the request the PPO cited provisions of Article 243(1) of the IPL.

Article 243
1. Unless otherwise stipulated in this Law, where in the course of proceedings a time limit to perform an act requisite, under this Law, for continuance of the proceeding has not been observed, the Patent Office may, at the party’s request, restore the time limit, provided that the party provides a plausible explanation that non-observance was without fault on its part.

2. Subject to paragraph (4), the request referred to in paragraph (1) shall be submitted to the Patent Office within two months from the date on which the reason for non-observance has ceased to exist, however not later than within six months from the date of the expiry of that time limit. At the same time, the requesting party shall be required to perform the act in respect of which the time limit was fixed.

3. A time limit to submit the request referred to in paragraph (2) shall not be restorable.

4. Where a decision has been taken on discontinuance of the proceeding for the reason of failure to observe a time limit for performance of a specified act, that decision, at the party’s request for re-examination of the matter, may be reversed, provided that the party provides in the request a plausible explanation that the non-observance was without fault on its part, while performing, at the same time, the act in respect of which the time limit was fixed.

5. Where the time limit for filing an application for the purpose of preserving the right of earlier priority or the time limit for furnishing a document expires on a day on which the Patent Office is closed to the public, the application or the document received on the first subsequent day on which the Patent Office is open to the public shall be deemed to have been received within the time limit concerned.

6. In respect of time limits, to which paragraph (1) is not applicable, and the non-observance of which has been caused by exceptional circumstances, the provisions on suspension of the course of negative prescription caused by acts of God shall apply accordingly. In such cases, the Patent Office shall give orders after having been furnished with relevant evidence by the interested party.

7. Notwithstanding the provisions of paragraphs (5) and (6), the Patent Office shall secure the reception at any time of day of letters delivered by interested persons.

Mr Reszka filed a complaint against this order. The Voivodeship Administrative Court in Warsaw in its judgment of 22 July 2010 case file VI SA/Wa 934/10 did not examine the merits of the case, namely whether, in the event of a failure to comply with a deadline, the illness of a representative should be taken into account. The VAC annulled the questioned order refusing to restore the deadline, because the PPO applied the wrong provision. The deadline for lodging a request for a retrial shall be restored on the basis of Article 58 of the APC.

Article 58
§ 1. If the deadline is infringed it may be rescheduled at the request of an interested party if it appears probable that the infringement was not caused by that party.
§ 2. A request to reschedule the deadline should be made within 7 days of the reason for the deadline’s infringement coming to an end. However, the actions for which the deadline was set must be carried out simultaneously with the request being made.
§ 3. It is not possible to reschedule the deadline for making the request referred to in § 2.

The Court held that the provisions of Article 243 of the IPL are applicable in deadlines set by the Polish Patent Office in the course of the given case. After the issuance of a negative decision in a case the the proceeding is not pending because it has been completed. It may be continued after upon successful acceptation of the request to reschedule the deadline. Therefore, Article 243 of the IPL could not be applicable in the above-mentioned case. See also “Procedural law, case VI SA/Wa 2091/07“.

Trade mark law, case VI SA/Wa 203/10

October 11th, 2010, Tomasz Rychlicki

The Polish company INTERKOBO Sp. z o.o. filed a request for the invalidation of the right of protection for “kucyk pony” R-139097 trade mark registered for HASBRO POLAND Sp. z o.o. Kucyk means “pony” in Polish language. INTERKOBO argued that it has the legitimate interest in the invalidation proceedings because it is a manufacturer of toys, and it offers products such as toy ponies. In addition, in the cease and desist letter dated on 24 April 2007, HASBRO called INTERKOBO to stop the infringement of the right of protection for “kucyk pony” R-139097 trade mark which consisted of using by the INTERKOBO of “Princes’ s Pony” sign for designation of ponies’ toys. INTERKOBO argued also that HASBRO restricts the freedom of economic activity of its competitors, asking them to stop marketing of toys in the form of a small pony and requesting destruction of such products. By registering of the trade mark in question HASBRO had the intention of its use in isolation from the goods for which it was registered, and the intention of closing the access to the market for its competitors, the more that HASBRO as a professional market player should knew or should have known that the term “kucyk pony” as used for the toys in the form of a pony does not have any sufficient distinctiveness. INTERKOBO stressed that HASBRO Sp. z o.o. is a part of capital group operating on the global toys market, which is the position that allows it to dominate the market for local manufacturers of toys and contrary to the scope of the use made of registration to combat competition, which is contrary to the principles of the social coexistence.

HASBRO claimed that its sign is used on the Polish market, on the packaging of “kucyk pony” toys and other materials, since 1998 and is the subject of a number of marketing activities, and the brand “kucyk pony” includes not only toys, but also videos and a monthly magazine for children. HASBRO argued that its trade mark has a strong distinctive character and can be regarded as a reputable one, in relation to the goods it designates it has the so-called primary distinctive character.

The Polish Patent Office dismissed the request. INTERKOBO filed a complaint against PPO’s decision. The Voivodeship Administrative Court in Warsaw in its judgment of 24 June 2010 case file VI SA/Wa 203/10 affirmed this decision and dismissed the case. The VAC held that the trade mark in question is is a fanciful sign and has the primary distinctive character. It is not a generic name of any of the listed goods, and it does not inform about their properties. Pony (in Polish: kucyk) is the generic name of the horse species while it is not the name of the goods protected by the trade mark, which goods do not have any direct connection with any species of horses.

Industrial design law, case VI SA/Wa 1764/09

September 28th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 14 December 2009 case file VI SA/Wa 1764/09 held that the examination of all of the evidence should include all evidence taken in the proceedings, as well as taking into account all the circumstances surrounding an individual evidence and relevant to assess their strength and reliability. The PPO while considering the evidence, cannot skip any of the proof, it may, however, in accordance with the principle of the free assessment of evidences included in Article 80 of the APC, refuse the reliability of an evidence, but then it is obliged to justify all the reasons of such decision.

Article 80
The public administration body shall assess whether a given circumstance has been proven on the basis of the entirety of the evidential material.

This case concerned the industrial design “Noga fotela” (in English: chair leg), Rp-3506.

Rp-3506

Procedural law, case IV SA/Po 304/10

September 24th, 2010, Tomasz Rychlicki

The Voivoideship Administrative Court in Poznań in its judgment of 22 September 2010 case file IV SA/Po 304/10 confirmed once again one of the fundamental principles of administrative law that an administrative decision should include at least the name/designation of an authority who issued it, the addressee of the decision, the conclusion and a signature of the person entitled to issue an administrative decision. When there is no signature, it is not the administrative decision, but a draft of such a decision.

Categories: Art. 107 §1 APC | Art. 145 PBAC | Art. 156 §1 pt 7 APC | Voivodeship Administrative Court.

Industrial design law, case VI SA/Wa 2026/09

September 22nd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 19 May 2010 case file VI SA/Wa 2026/09 held that for the purposes of assessing the probative value of the document, the reliability and accuracy of the information contained therein should be first examined. In this regard, in particular, the PPO should take into account the origin of the document, the circumstances of its preparation, its recipient, and then ask a question whether, given its content, it seems sensible and reliable.

This judgment concerned the industrial design “Panel perforowany” (in English: perforated panel), Rp-8329.

Rp-8329

E-signature law, case II SA/Gd 573/10

September 11th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Gdańsk in its order of 9 September 2010 case file II SA/Gd 573/10 held that the legal effectiveness of a letter brought by a party to an administrative court by electronic means must be confirmed by its later signature. This is the requirement provided in Article 46 § 1 pkt 4 of the Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, published in Journal of Laws (Dziennik Ustaw) No 153, item 1270, with subsequent amendments, which says that each letter must contain the signature of the party or its representative. This also applies to letters sent by electronic means. This ancient requirement is still in force even if there is the Polish Act on the Informatization of Entities Performing Public Tasks – IEPPT – (in Polish: ustawa o informatyzacji działalności podmiotów realizujących zadania publiczne) of 17 February 2005, Journal of Laws No 64, item 565 as amended, and the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym), published in Journal of Laws (Dziennik Ustaw) of 15 November 2001, No 130, item 1450, with subsequent amendments, because both acts did not introduce the electronic administrative proceedings or electronic docketing systems to the Polish procedure.

See also “E-signature law, case I OPP 25/08” and “E-signatures in Poland“.

Trade mark law, case VI SA/Wa 2127/09

September 10th, 2010, Tomasz Rychlicki

The Polish company AFLOFARM Fabryka Leków Sp. z o.o. applied for the word-figurative trade mark “tabletki na uspokojenie Aflofarm” (in English: Aflofarm tablets for calming down) Z-298475 for goods in classes 03, 05 and 44. The Polish Patent Office refused to grant the right of protection in part of the goods in class 5 covering dietetic substances for medical use, food for babies. The PPO held that the right of protection shall not be granted for a sign that misleads the public as to the nature and properties of the good. Such misleading information is a sign that may cause false image of the average buyer as to the nature of the product, its quality or properties. The assesment of content of a signs is made by him or her from the perspective of the average consumer. The interest of the buyers requires the assumption that the sign is misleading, once a small group of consumers may be misled as to the characteristics of the goods or services, since these characteristics may affect the decision taken, in relation to those goods or services. Under such assumption, the assessment cannot be affected by anything outside the relationship sign – the goods with the reasonable buyer’s idea on such relationship. It follows that the sign “tabletki na uspokojenie Aflofarm” on the goods listed in class 5 should be considered as misleading the buyers as to the nature, purpose, or functional characteristics of these goods.

Z-298475

AFLOFARM argued, that it’s not true that the buyer/consumer “is left alone” with a sign and a product bearing the questioned trade mark. These products are only available in pharmacies and are issued only by a professional that is a pharmacist. Thus it excludes the confusion of the average consumer as to whether he or she has bought the wrong product.

The Voivodeship Administrative Court in Warsaw in its judgment of 18 March 2010 case file VI SA/Wa 2127/09 agreed with AFLOFARM’s arguments and reversed the contested decision. The Court also noticed that “tabletki na uspokojenie Aflofarm” trade mark was applied for dietary agents/means for medical use, rather than dietary substances for medical purposes. For this reason, the Court held that the goods that are marked with a “tabletki na uspokojenie Aflofarm” trade mark will not cause consumers’ confusion since products of such indications or effectiveness can be classified differently, depending on their registration or application.

Trade mark law, case VI SA/Wa 21/10

September 7th, 2010, Tomasz Rychlicki

The Polish company Atlantic sp. z o.o. applied for the word-figurative trade mark ATL ATLANTIC Z-313731 in classes 03, 18 and 25. The Polish Patent Office refused to grant the right of protection in part of the goods covering deodorants for personal use, soaps, perfumery, cosmetics, cosmetic kits, portable suitcases for cosmetics, travel bags for clothing, shopping bags, beach bags, handbags and women handbags.

Z-313731

The PPO held that there are similar and conflicting trade marks such as Atlantic R-141375 for goods in class 18, Atlantic IR-631190 and ATLANTIC IR-787876 for goods in class 03.

R-141375

The Voivodeship Administrative Court in Warsaw in its judgment of 7 April 2010 case file VI SA/Wa 21/10 dissmissed Atlantic’s complaint and upheld the contested decision. The Court ruled that in all cases where the problem of the similarity of the opposed trade marks arises, it is the result of two closely related issues, i.e. the similarity of signs and the similarity (homogeneity) of goods/services for which the signs are applied for, registered or used. Both these factors determine the scope of trademark protection (citing M. Kępiński [in:] Niebezpieczeństwo wprowadzania w błąd odbiorców co do źródła pochodzenia towarów w prawie znaków towarowych, ZNUJ PWOWI zeszyt no 28 of 1982, p. 10). The VAC held that the convergent elements of disputed signs have crucial meaning for the buyers and such conclusion is justified from a psychological point of view, since the purchaser keeps in mind only a general representation of the sign for which is he or she looking for. Therefore the buyer chooses a sign based only on dominant elements while ignoring differences.

Trade mark law, case II GSK 626/09

September 6th, 2010, Tomasz Rychlicki

The Swiss company Marquard Media, current publisher of the magazine “Przegląd Sportowy”, which since 1974 always includes a supplement entitled “Skarb Kibica” (in English: Fan’s Treasure), succeeded in registering SKARB KIBICA R-134960 at the Polish Patent Office.

In 2004, Profus Management requested the invalidation of the right of protection for the SKARB KIBICA trade mark. Profus claimed that this sign has informational nature rather than distinctive character. It provided an opinion written by professor Urszula Promińska to support its arguments with this regard. In 1992 Profus Management bought the weekly football magazine “Piłka Nożna” with “Skarb Kibica” column. Marquard Media filed a trade mark infringement suit.

In 2006, the PPO has decided on the invalidation of the right of protection. The Voivodeship Administrative Court in Warsaw in its judgment of 2 October 2006 case file VI SA/WA 791/06 reversed this decision, but only because of deficiencies in the proceedings and send it back to the PPO for reconsideration.

When examining the case after the judgment, the PPO in its decision of 25 February 2008 case file Sp. 213/07 dismissed Profus Management request. The PPO held that the mere use of the sign in question by different entities cannot deprive its distinctiveness. When the case went again in 2009 to the VAC, the owner of “Przegląd Sportowy” and “Skarb Kibica” was Axel Springer Poland. The Voivodeship Administrative Court in Warsaw in its judgment of 27 February 2009 case file VI SA/Wa 2219/08 dismissed Profus complaint. The Supreme Administrative Court in its judgment of 31 August 2010 case file II GSK 626/09 upheld this decision. The SAC held that the mere use of this sign by different publishers at the date of its registration cannot deprive its distinctiveness. The distinctive character of such a sign is examined, of how it was perceived by readers interested in football and sport activities.

Trade mark law, case VI SA/Wa 180/10

September 6th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 16 June 2010 case VI SA/Wa 180/10 held that in assessing the confusing similarity the PPO should not be limited to include only one component of a complex sign while comparing it with another trade mark. On the contrary, such a comparison is made by examining the signs as whole.

Trade mark law, case II GSK 607/09

August 31st, 2010, Tomasz Rychlicki

TRODAT POLSKA Sp. z o.o. from Warsaw applied for the right of protection for Pieczątka 2 Z-294822, Pieczątka 3 Z-294821, and Pieczątka 4 Z-294823 trade marks in class 13. Pieczątka means “stamp” in English. The Polish Patent Office in letters dated 27 March 2007 informed the applicant that these signs are not capable of serving as trade marks due to lack of sufficient distinctive character and urged Trodat to submit comment on this issue. The applicant did not respond to the letters sent by the PPO, in particular, Trodat did not take any position on the reported lack of sufficient distinctive character.

Z-294821

The Supreme Administrative Court in its judgment of 14 July 2010 case file II GSK 607/09 held that the burden of proof rests on those who seek for legal consequences from a particular fact for itself (the applicant), it results from a series of obligations incumbent on the applicant, including the obligation to provide explanations, to take an active part in the proceedings and to submit precise requests. These obligations are provided in Articles 145(2) and 152 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with subsequent amendments, in connection with Regulation of the Prime Minister of 8 July 2002 on filing and processing of trademark applications, Journal of Laws (Dziennik Ustaw) No 115, item 998 with subsequent amendments.

Article 145
1. Subject to paragraph (2), where the Patent Office finds that the statutory requirements for the grant of a right of protection for a trademark have not been satisfied, it shall make a decision on refusal to grant the right.
2. Before the decision referred to in paragraph (1) is made, the Patent Office shall fix a time limit, within which the applicant is invited to react on the collected evidences and documents which imply the existence of grounds that may cause the right of protection to be denied.
3. Where the statutory requirements are found not to have been satisfied in respect to only certain goods, a right of protection for the trademark in respect of these goods shall be first to be refused by the Patent Office. On the respective decision becoming final the Patent Office shall grant a right of protection for the trademark in respect of the goods, for which it can be granted.

Article 152
The Prime Minister shall, by way of regulation, determine the detailed requirements to be satisfied by a trademark application, the detailed rules and procedure to be applied in the course of examination of trademark applications including, in particular, the extent to which the relevant information may be disclosed to the public after the expiration of the period referred to in Article 143 and the manner in which it is made available, as well as the extent to which the Patent Office is authorised to make corrections in the list of goods and their classification. The requirements to be satisfied by trademark applications may not be determined in such a way as to encumber the applicant with excessive and unreasonable impediments.

The renunciation of the party – despite the invitation issued by the Polish Patent Office – to submit sufficient evidence, explanations, positions may not be of no importance in a situation where the party alleges that the PPO erred in its decision in this particular issue, as a result of breach of the obligation imposed on the PPO to clarify the circumstances of the case in accordance with Article 7 and 77 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, Journal of Laws (Dziennik Ustaw) No 30, item 168, consolidated text of 9 October 2000, Journal of Laws (Dziennik Ustaw) No 98, item 1071 with subsequent amendments.

Article 7
Public administration bodies shall uphold the rule of law during proceedings and shall take all necessary steps to clarify the facts of a case and to resolve it, having regard to the public interest and the legitimate interests of members of the public.

Article 77.
§ 1. The public administration body is required to comprehensively collect and examine all evidential material.
§ 2. At each stage of proceedings a body can amend, supplement or withdraw rulings made regarding the examination of evidence.
§ 3. An body conducting proceedings as a result of having been required to do so by the body having jurisdiction to settle the case (Article 52) may, on an ex officio basis or on application by one of the parties, hear new witnesses or experts on circumstances that form the objects of such proceedings.
§ 4. Universally accepted facts and facts known to the body ex officio do not require proof. Parties to proceedings should be informed of facts that are known to the body.

The SAC noted that the provisions of the IPL that provides the possibility to request the applicant by the PPO to submit comments or issue a statement, in fact, serve to define the limits of administrative case, such as defining what is to be examined by the PPO and to what extent this should occur. The PPO is required to make an invitation before taking a decision, therefore, before deciding on the matter. At this stage, it is possible to have the intervention of the parties, if, contrary to the intentions expressed in the request/application, the PPO, for example, does not cover by its activities of all elements of the case, or unreasonably restricts its borders.

Trade mark law, case VI SA/Wa 839/09

August 28th, 2010, Tomasz Rychlicki

The Voivodeship Administrative in its judgment of 5 August 2010 case file VI SA/Wa 839/09 decided on the complaint of the holder of the Polish trademark registration DSC R-82966 against the decision Sp. 2/98 of the Polish Patent Office of 28 January 2009 on invalidation of this trademark.

R-82966

The VAC has not examined substantive issues of the matter because as it has stated the decision of the Polish Patent Office is too general and it does not specify documents on which the Polish Patent Office has based its findings. In the Court’s opinion the Polish Patent Office quoting his findings has only used the phrase “it results from the submitted documents that…”, instead of giving precise description of each relevant document, which prevents the Voivodeship Administrative Court from presenting its opinion on the correctness of the questioned decision. In view of above, the complaint has been accepted and the matter has been transferred to the Polish Patent Office for reexamination.

Trade mark law, case II GSK 746/09

August 10th, 2010, Tomasz Rychlicki

This is the continuation of a story decribed in “Trade mark law, case VI SA/Wa 2284/08” that concerned the trade mark HERITAGE FILMS. The Supreme Administrative Court in its judgment of 10 August 2010 case file II GSK 746/09 dismissed the cassation complaint brought by Zygmunt Piotrowski. The SAC held inter alia that the provisions of the TMA or the IPL do not provide in the course of the litigation proceedings lead by the Polish Patent Office, for the possibility to control the legality of the administrative proceedings that concerned the registration of a given trade mark. The legality of a decision granting the right of protection should be challenged in different proceedings.

Heritage

The Court noted that Mr Piotrowski confused the concepts of “invalidation of the registration right” or “invalidation of right of protection for a trade mark” with the annulment of the decision on the granting of the right. There are different grounds for such decisions and other procedures on their issuance, but in case of the breach of the provisions listed in Article 29 of the Trade Marks Act, those conditions may overlap, and only in this case they might be raised in the opposition proceedings. Consequently, the invaliditon of the protection right, although identical in its consequences, cannot be identified with the institution of the annulment of the decision on the granting of the right of protection.

Trade mark law, case II GSK 495/09

August 10th, 2010, Tomasz Rychlicki

On 14 March 1994, Polish entrepreneur operating under the name Usługi Pogrzebowe “Hades” Włodzimierz Wasilewski from Częstochowa applied for the right of protection for HADES Z-130892 trade mark in class 45, funeral services. Another Polish entrepreneur operating under the name Nowak Tomasz Firma Pogrzebowa HADES from Łódź filed an opposition to a final decision of the Patent Office on the grant of the right of protection for HADES R-148641 trade mark.

R-148641

Tomasz Nowak claimed that the Polish Patent Office ruled on the discontinuance of examination proceedings for HADES Z-130892 because of the failure to pay application fees and on 6 March 1999, he decided to file for the right of protection for word-figurative trade mark HADES Z-198798 in classes 26 31 39 42. On 26 September 2001 the PPO granted the right of protection for HADES R-132619 trade mark. Tomasz Nowak argued that the resumption of proceedings by the Patent Office on the application of HADES Z-130892 trade mark, which led to the granting of the right of protection, deprived him of part of the right acquired in good faith and the possibility to obtain the protection for the next sign. According to Tomasz Nowak the decision on the grant of the right of protection for HADES R-148641 trade mark, not only violates his right to earlier acquired trade mark, but most of all it violates the principle of certainty and security of legal transactions. It leads to a situation where the market will experience two identical trade marks, registered for identical goods, however, enjoyed by the various owners, which is contrary the rules of trade mark law of course.

R-132619

The PPO dismissed the opposition and Tomasz Nowak filed a complaint against this decision of the PPO. He based its claims on provisions of article 8(1) and (2) of the old Polish Trade Mark Act – TMA – (in Polish: Ustawa o znakach towarowych) of 31 January 1985, Journal of Laws (Dziennik Ustaw) No 5, item 15, with subsequent amendments.

Article 8
A trademark shall not be registrable if:
1) it is contrary to law or to the principles of social coexistence;
2) it infringes the personal or economic rights of third parties;

Tomasz Nowak also challenged the examination proceedings which led to the registration of the questioned trade mark.

The Voivodeship Administrative Court in Warsaw in its judgment of 14 January 2009 case VI SA/Wa 1941/08 ruled that legal provisions invoked in the complaint cannot be applied to assess the legality of the registration proceedings conducted by the PPO. Accordingly, the request for invalidation of right of protection of HADES trade mark under these provisions was irrelevant. The provisions of the TMA, or the IPL does not provide in the course of the litigation proceedings lead by the PPO, the possibility to control the legality of the administrative proceedings that concerned the registration of the questioned trade mark. The Court ruled that the allegations of violation of the administrative procedure by the PPO could only qualify as a basis for annulment of the decision. Tomasz Nowak was required to bring such claims in the complaint, however he did not so. Tomasz Nowak filed a cassation complaint.

The Supreme Administrative Court in its judgment of 15 June 2010 case file II GSK 495/09 dismissed the cassation complaint. The SAC ruled that the VAC could not review the decision on the grant of a right of protection for HADES R-148641 trade mark. The VAC had to decide within the scope of the complaint and shall be bound by the legal ground invoked by the requesting party. The SAC also expressed the view that the registration of the name of someone else’s company does not preclude the registration of a trademark but the right to a name of the company must be infringed, and the existence of such right has not been proven by Tomasz Nowak. The complainer has not demonstrated that he had the right to name of the company. Actually both entrepreneurs have the right to use HADES sign as their business name. The complainer also argued that the mere prior use of the sign and not in relation to the applicant, but in relation to the entitled to the right of protection, provides a sufficient argument that the questioned trade mark infringes personal or economic rights of third parties. The SAC ruled that this view is incorrect. It clearly refers only to infringement of personal or property rights.

Industrial design law, case VI SA/Wa 599/10

August 2nd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 12 May 2010 case file VI SA/Wa 599/10 held that the factual justification of the decision of the Polish Patent Office should contain the facts that the PPO regards as proven, the evidence relied upon and the reasons for which other evidence has been treated as not authentic and without probative force. The legal justification should contain the legal authority for the decision with reference to the relevant law. Only justification prepared in accordance with these requirements allows for a full review of the contested decision. The Court upheld the contested decision and ruled it unenforceable because the PPO found that the design meets the requirement of individual character, but it did not explain which differences in shapings decide on their individual character. The position of PPO as to a small range of creative freedom was also not apparent from the justification.

Wzór Przemysłowy Rp-12232

This judgment concerned the industrial design “Plafoniera sufitowa” (in English: Ceiling plafoniere/ceiling-mounted chandelier) Rp-12232.

This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

Industrial design law, case VI SA/Wa 598/10

August 2nd, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 12 May 2010 case file VI SA/Wa 598/10 held that the court’s review of a decision issued by the PPO does not include a requirement to make additional findings for a case. The factual justification of the decision should contain the facts that the PPO regards as proven, the evidence relied upon and the reasons for which other evidence has been treated as not authentic and without probative force. The legal justification should contain the legal authority for the decision with reference to the relevant law. Only justification prepared in accordance with these requirements allows for a full review of the contested decision.

Wzór Przemysłowy Rp-12224

This judgment concerned the industrial design “Ramię ozdobne do opraw oświetleniowych” (in English: Decorative Arm for luminaires) Rp-12224.

This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

Trade mar law, case VI SA/Wa 2180/09

July 31st, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 28 July 2010 case file VI SA/Wa 2180/09 held that since the decision on the establishment who owns copyright to questioned trade mark, that should be issued by a civil court, was not taken because of the failure to act, the PPO correctly decided that the reasons for the stay of the invalidation proceedings indicated in the order no longer holds. This case concerned “panorama pogody” trade mark R-145414 owned by Eniro Polska Spółka z o.o. from Warsaw.

Trade mark law, case VI SA/Wa 2178/09

July 30th, 2010, Tomasz Rychlicki

Polish entrepreneur requested the Polish Patent Office for the invalidation of “panorama religii” trade mark R-145419, claiming the it owns copyright to the aforementioned sign. The PPO decided to stay the proceedings and ordered the applicant within two months from the date of receipt of the order to file a suit to the civil court with regard to establishement of copyrights to the disputed trade mark. The applicant was also ordered to provide the PPO with certified copies of the suit within two months from the date of receipt of the order. The applicant did not file such a suit and stated that he will not take those steps. After filing another motions this case went to the administrative court.

The Voivodeship Administrative Court in Warsaw in its judgment of 28 July 2010 case file VI SA/Wa 2178/09 held that whether there was an infringement of civil jurisdiction, in this regard, the matter will be subject to review by the Court on the complaint against the merits of the PPO’s decision.

Procedural law, case VI SA/Wa 2135/09

July 26th, 2010, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 21 July 2010 case file VI SA/Wa 2135/09 held that when the party was aware of the deadline and has failed to comply and formally applies for the restoration, the authority cannot leave this request without consideration, while adopting the decision on the merits immediately. The general provisions of the Administrative Proceedings Code are applicable in such case.

Article 59.
§ 1. The relevant public administration body in the case shall make a decision on whether to reschedule the deadline. An interlocutory objection may be filed in relation to a refusal to restore the deadline.
§ 2. The body having jurisdiction for hearing an appeal or an interlocutory objection shall make a ruling on whether to reschedule the deadline for making such an appeal or interlocutory objection.

The relevant public administration body decides whether to reschedule the deadline.

Categories: Art. 59 §1 APC | Polish Administrative Proceedings Code | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 503/10

July 20th, 2010, Tomasz Rychlicki

In January 2010, Polish company LMW sp z o.o. represented by a patent attorney filed via the Polish Patent Office (PPO) a complaint to the Voivodeship Administrative Court in Warsaw, against the decision of the PPO on the refusal to grant a right of protection for LIBERTY MOTORS trade mark Z-315048.

Z-315048

In the Court’s order of 8 April 2010, a representative of LMW was asked to remedy the formal deficiencies of a complaint by submitting a power of attorney/proxy to act on behalf of the applicant before the voivodeship administrative court or before administrative courts and the document setting out the power to represent the applicant, i.e. the original or a certified copy of the full entry from the National Court Register, within 7 days from the date of service of summons under pain of dismissal of the action. This summons were served on 16 April 2010. The deficiencies were not removed.

The Voivodeship Administrative Court in Warsaw in its order of 31 May 2010 case file VI SA/Wa 503/10 rejected LMW’s complaint. The Court held that according to provisions of article 58 § 1 pt 3 of the Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270 with later amendments, the administrative court shall reject the complaint, if it was not compensated for the formal deficiencies, within the prescribed period of time.