Polish IP & IT law – copyright trademark computer internet telecomm

Archive for: Art. 5 CC

Trade mark law, case XXII GWwp 19/10

September 4th, 2013, Tomasz Rychlicki

ZIMBO Fleisch- und Wurstwaren GmbH & Co. KG sued Wanda Szczupak for the infringement of Community Designs nos. 000729694-0001, 000729694-0002, 000729694-0008 and 000729694-0009, and the CTM ZIMBO no. 006462592. ZIMBO argued that Mrs. Szczupak distributes her products in packagings similar to ZIMBO’s. This similarity is reflected in the choice of colors, arrangement of individual elements of the package, with the dominant red color in the upper part in the white frame surrounding the window showing the product, with figurative floral patterns in green. ZIMBO argued that such packaging did not create a different overall impression on the informed user, and the identity of the goods and the similarity of Viando and ZIMBO trade marks create the likelihood of confusion as to the origin of the products offered by the parties. ZIMBO provided some evidence on consumer confusion. Mrs. Szczupak requested dismissal of the action and reimbursement of costs of legal representation. She alleged lack of standing, and explained that on 31 VII 2010, she sold the entire enterprise to the company Zakłady Mięsne “VIANDO”, all together with the right of protection for a trade mark Viando R-188683 that was granted with priority of 8 April 2004.

R-188683

The Court for the Community Trade Marks and Community Designs (in Polish: Sąd Okręgowy w Warszawie Wydział XXII Sąd Wspólnotowych Znaków Towarowych i Wzorów Przemysłowych) in its judgment of 4 April 2011 case file XXII GWwp 19/10 dismissed the complaint. The Court agreed with Mrs. Szczupak and ruled that the word-figurative trade marks are not identical or even similar in the visual, phonetic and conceptual aspects. Moreover, VIANDO’s packaging and CDRs nos. 000729694-0008 and 000729694-0009 fundamentally differ in number of elements, and they produce on the informed user (consumer of meats, employee of shops with meat products) different overall impression.

Unfair competition, case V CSK 192/09

September 28th, 2010, Tomasz Rychlicki

AFLOFARM Fabryka Leków sp. z o.o. from Ksawerów sued two Polish companies for trade mark infringement and unfair competition delict/tort with regard to selling similar pharmaceutical products. This case went through all instances.

Z-307527

The Supreme Court in its judgement of 22 January 2010 case file V CSK 192/09 published in the electronic database LEX, under the no 564857, dismissed the complaint filed by Hasco Lek S.A. and Hasco Lek Dystrybucja. The Court held that the specificity of the market’s segment in which the magnesium preparations are sold, and which boils down to the fact that the same or very similar products gains the advantage of customers, through its specific name and advertising of such product and its packaging, requires greater care when introducing a new product of a very similar name and packaging, because it cannot mislead consumers, and it cannot take away consumers from another producer.