Archive for: trade mark refusal

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Trade mark law, case II GSK 371/14

April 10th, 2015, Tomasz Rychlicki

On 5 May 2010, PLAY Brand Management Limited applied to the Polish Patent Office for the right of protection for a single color trade mark Z-369967 defined in PANTONE scale as 2627C, for goods and services in Classes 9, 35 and 38.

The Polish Patent Office refused to grant the right of protection and decided that the applied sign was not inherently distinctive in relation to communications services for mobile phones, and the applicant has not demonstrated sufficiently that the mark has acquired distinctivenes through use. PLAY submitted request for re-examination of the matter. The PPO ruled that the sign in question may serve as a trade mark, since it was applied graphically and identified using the code recognized at international level, i.e. Pantone number. Such a figurative representation of a single color is in line with the requirements set for a designation that in order to fulfill its function as a trade mark must be clear, precise, complete in itself, easily accessible, understandable, fixed and objective. However, while analyzing the distinctiveness of the applied trade mark in concreto, the PPO stressed that, according to settled case-law, the essential function of a trade mark is to guarantee to the consumer or end user the identity of the origin of the designated goods or designated services, by allwowing him to distinguish the goods or services from the goods or services of different origin. The goal of distinctiveness of a trade mark is to provide a given sign with such features that in the minds of market players they will clearly indicate that the product (or service) marked in this way is derived from the specific entity. Therefore, the attention sould be paid to the customary use of the trade mark, as a designation of origin in the specific sectors, as well as the perception of relevant consumers. In the opinion of the PPO when it comes to color per se, the existence of distinctiveness (without any prior use) is possible only in exceptional circumstances, in particular, when the number of goods or services for which the trade mark was applied for is very limited and the relevant market is very specific. Those conditions must be interpreted in the light of the public interest, which is based on the fact that the availability of colors cannot be unduly limited for all other entrepreneurs. The PPO noted that the modern technology allows to generate an almost infinite number of shades of each color, but in assessing whether they differ from each other, one should take into the perception of a relevant group, and therefore the average consumer. The number of colors that people are able to actually identify, is small, therefore the number of colors available as potential trade marks that would allow for distinguishing the goods had to be regarded as very limited. Moreover, the market for mobile services is not narrow and specific. Such market does not only cover telecom operators, but it is a collection of current and potential buyers of a product or service, respectively, its size depends on the number of buyers that express interest in all products, with an adequate income and availability of products for purchase. Market size is a characteristic that describes the quantitative state of the market at a given time in number of consumers (users) of a given type of goods or services. The PPO stated that the scale of Pantone, as the RAL or CMYK scales, is a very precise tool used to describe the color, but little practical from the standpoint of conditions of a normal trade and market turnover. The description of the Pantone color will not be a sufficient indication for the average consumer. The PPO also decided that less than four years (the company started its operation in 2007, and market survey evidence was conducted in 2011) could not be considered as a sufficient period to establish that the sign was in long-term use. In the context of proving that the sign has acquired secondary meaning, such time was certainly too short. PLAY Brand Management filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 9 October 2013 case file VI SA/Wa 1378/13 dismissed it. The Court ruled that the PPO properly examined all the evidence material and properly justified its decision. The VAC as the PPO relied on the opinion of legal commentators and the so-called “color depletion/exhaustion” theory. According to this concept, the number of colors that the human eye is able to recognize is small and limited. Therefore, none of the colors should be subject to anyone’s “ownership”, or generally speaking – the exclusive right, and these colors should be keept in the public domain, and therefore freely available for all entrepreneurs. The theory of shades’ confusion support the first one. The second provides that human perception is so limited that the average consumer is not able to distinguish between a large number of shades of different colors. Applying both theories to present commercial realities it should be borne in mind that the majority of trade marks exists in an environment where decisions on the purchase of goods or use of services are made hastily, without much hesitation on the part of consumers. It is difficult to expect that consumers will conduct an analysis and comparison of similar shades of color, and on this basis, they will be associating the product with its origin. The Court also agreed that the acquired distinctiveness has not been proven. Surveys were conducted in a group consisting of 1000 respondents who use mobile phones and thus who should have knowledge about the market and mobile network operators. However, these people differently responded to the two questions: i) with which mobile operators’ brands do they associate the color, and ii) with which brands do they associate the color.
For the first question, 59% of respondents indicated PLAY as the operator, and only 11% respondents of the same group associated the color with PLAY while answering the second question, although the results should be concurrent, because the second question has not been addressed to random group of people, but a group of people who use mobile services. PLAY Brand Management filed a cassation complaint.

The Supreme Administrative Court in its judgment of 23 March 2015 II GSK 371/14 dismissed it.

Categories: acquired distinctiveness | Art. 129(1)(ii) IPL | Art. 129(2)(i) IPL | Art. 130 IPL | non-traditional trade marks | Polish Act on Industrial Property Law | Polish courts | Polish institutions | Polish law | Polish Patent Office | Polish Supreme Administrative Court | single colour | trade mark examination | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case II GSK 146/13

May 7th, 2014, Tomasz Rychlicki

On September 2007, Mr Jarosław Spychała applied to the Polish Patent Office for the right of protection for the word trade mark LEGO-LOGOS Z-330692 for services in Classes 35, 36 and 41. The PPO informed the applicant that his trade mark is similar to series of signs registered and owned by LEGO Juris A/S. Mr Spychała argued that the applied sign is the neologism derived from the ancient Greek language, and the term LEGO simply means “to read, think or speak”, and the term LOGOS means “learning” in a broad sense. In academic and education circles the term LEGO-LOGOS is associated with a particular form of education in philosophy and in building moral attitudes. The mark is directed at people who wish to explore philosophy and knowledge.

The Polish Patent Office refused to grant the right of protection because the applied trade mark was similar to the word trade mark LEGO R-72961 that was registered with an earlier priority for almost similar services. Mr Spychała filed a complaint against this decision and argued that the fact that compared signs share the same identical word element is not sufficient to refuse the protection for the later trade mark. The most important was the subject of the applied trade mark – a philosophical concept developed by the applicant and its popularization.

The Voivodeship Administrative Court in its judgment of 11 July 2012 case file VI SA/Wa 1201/11 dismissed the complaint. The Court noted that the PPO properly made the comparison of goods and services and did not erred in comparison of both signs. The VAC agreed with the PPO that the word element LEGO can also mean to fold or to assemble, and thus relate to specific products – blocks that are marked by registered trademarks of LEGO Juris A/S. The Court pointed out that the applicant while describing the project of philosophical education under the name LEGO-LOGOS has also showed that he drew the expression of LEGO from Danish language. Regardless of what language (Ancient Greek or Danish) the dominant element LEGO was taken, it is a word that does not exist in the Polish language. Its importance in ancient Greek or Danish is not understandable for the average Polish recipient of goods or services. It may be related to the characteristics of goods – just blocks marked with this sign. Mr Spychała filed a cassation complaint.

The Supreme Administrative Court in its judgment of 11 March 2014 case file II GSK 146/13 dismissed it.

Categories: Art. 132(2)(ii) IPL | Art. 145 IPL | Art. 148 IPL | Art. 151 PBAC | Art. 7 APC | Art. 77 APC | Art. 8 APC | Art. 80 APC | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish Administrative Proceedings Code | Polish courts | Polish institutions | Polish law | Polish Patent Office | Polish Supreme Administrative Court | similarity of signs | trade mark examination | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case II GSK 623/12

August 25th, 2013, Tomasz Rychlicki

On February 2009, the Polish company MIS S.A. applied to the Polish Patent Office for the right of protection for the word-figurative trade mark mis Polecany Lider Innowacyjności Z-351511 for goods in Class 9. The PPO refused, becuase it found similarity with the CTM MIS no. 002167674, registered with the earlier priority for goods in Class 9 and 42 and owned by MIS GmbH. MIS S.A. requested for the re-examination of the matter. The Company argued that the abbreviation MIS stands for management information systems and it lacks distinctiveness, because this term is functioning for many years in the textbooks of economics, management and information technology. The company indicated also that the proprietor of the earlier Community trade mark does not use it in business and is not interested in renewal of the protection of its trade mark, because, for several years, the successor of the German company did not file a formal request to transfer the exclusive rights to the new owner. The PPO refused to grant the right of protection, and MIS S.A. filed a complaint against this decision.

Z-351511

The Voivodeship Administrative Court in its judgment of 29 september 2011 case file VI SA/Wa 1257/11 dismissed it. The Court agreed that there exists similarity of signs and goods and services. Moreover, the Court stated that along with granting the right of protection for a trade mark, the exclusive subjective right is also created, this right is effective erga omnes – against all. So it’s important to separate ranges indicated in exclusive spheres of rights, and strive to avoid a situation where this could lead to overlapping powers. The property right to the trade mark is a transferable right, therefore, the sphere of exclusivity incorporated in the sign cannot be related to the business profile of the entrepreneur, because it involves the variability of the indicated areas of exclusivity and it is impossible to determine it in the course of trade, as well as in the examination proceedings conducted before the Polish Patent Office.

The Supreme Administrative Court in its judgment of 13 August 2013 case file II GSK 623/12 dismissed the cassation complaint filed by MIS S.A.

Categories: Art. 132(1)(iii) IPL | Art. 132(2)(ii) IPL | Art. 145 IPL | Polish law | similarity of goods | similarity of services | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case II GSK 544/12

July 29th, 2013, Tomasz Rychlicki

On December 2010, the Polish Patent Office refused to grant the righ of protection for the word-figurative trade mark Geo Globe Polska Z-359999 applied for the Polish company GEO GLOBE POLSKA sp. z o.o. sp. k.a. The PPO decided that according to the provisions of Article 131(2)(ii) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), 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, it is not allowed to grant the right of protection for signs which include the name or abbreviation of the Republic of Poland, if the applicant has not shown entitlement, in particular the permission of the competent authority of the State, to use the trade mark with such element.

2. A right of protection shall not be granted for a sign, if:
(ii) it incorporates the name or abbreviated name of the Republic of Poland, or its symbols (emblem, national colours or national anthem), the names or armorial bearings of Polish voivodships, towns or communities, the insignia of the armed forces, paramilitary organisations or police forces, reproductions of Polish decorations, honorary distinctions or medals, military medals or military insignia, or other official or generally used distinctions and medals, in particular those of government administration, local self-administration or social organisations performing activities in vital public interests, where these organisations’ activities extend to the entire territory of the State or to a substantial part thereof, unless the applicant is able to produce evidence of his right, in particular in a form of an authorisation issued by a competent State agency or a permission given by an organisation, to use the sign in the course of trade,

The company argued that the name “Polska” is not mentioned among the above conditions, and that Geo Globe Polska has an established position in international business. The company argued that it has tried to obtain permission from the competent authority, but it did not succeed, which in its opinion indicates that there is no legal basis to issue the relevant permit. The Chancellery of the Prime Minister and the Office of the President of the Republic of Poland issued statements that the prohibition on use of the name or abbreviation of the Republic of Poland is absolute. Geo Globe Polska filed a complaint against this decision. The company claimed that the PPO should make a literal rather than a broad interpretation of the provisions of IPL. Geo Globe Polska argued that many business entities in Poland are using the term “Polska”.

Z-359999

The Voivodeship Administrative Court in its judgment of 22 November 2011 case file VI SA/Wa 1749/11 dismissed it. The VAC held that it is obvious that the official name “Rzeczpospolita Polska” (Republic of Poland) includs the element “Polska”. Thus, it can be regarded as an abbreviation of the name of the country. The abbreviation “Rzeczposoplita” has constitutional status, i.e. it is included in the Preamble of the Constitution of the Republic of Poland, and its second element, whether in the Polish language or in translation into other languages, is the distinguishing element of the country’s name, and it’s commonly used at international meetings, competitions, including sports events. Moreover, even the Supreme Administrative Court in its judgment of 9 March 2005 case file I GSK 1423/04 published in LEX No. 186863, held that the protection is also afforded for the abbreviations in the form of the ISO 3166 standard for country codes, such as ID or PL. In another judgment of the Voivodeship Administrative Court in Warsaw of 23 March 2007 case file VI SA/Wa 2184/06, the Court held that the name “Poland” is not sufficiently distinctive. The word “Poland” is the English name of the Republic of Poland, and the Polish Patent Office rightly pointed in this case, that even for people who do not know the Polish language, the term “Poland” will always be associated with the country, and not to a specific entrepreneur. The Court also noted that the provisions of Article 6 ter point 1a) of the Paris Convention and Article 7(1)(h) and (i) of the Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark should be taken into account. The Court ruled that the protection of symbols under Article 6ter of the Paris Convention is absolute and applies to all goods and services. It concerns the symbols of particular public interest.

The Supreme Administrative Court in its judgment of 23 July 2013 case file II GSK 544/12 dismissed the cassation complaint.

Categories: Art. 131(2)(ii) IPL | Art. 6ter Paris Convention | company name or firm | Paris Convention | personal rights or interests | Polish Act on Industrial Property Law | Polish courts | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 2032/11

January 7th, 2013, Tomasz Rychlicki

On 17 August 2009, EMPIK CAFE sp. z o.o. applied to the Polish Patent Office for the right of protection for the word trade mark Lody prawdziwie domowe Z-359478 for goods and services in Classes 29, 30, 35 and 43. “Lody prawdziwie domowe” means real homemade ice cream. The PPO decided that the sign lacks distinctiveness because in terms of semantic, the combination of three words does not create the concept that would be distant from content directly read from the statement, and refused to grant the right of protection. This nominal phrase is a carrier of advertising message, referring to the characteristics of the goods and has no features that would suggest that it is more than a slogan, that is a trade mark. Monopolization of such a non-distinctive designation by one entrepreneur, which is the carrier of information and used in advertising, would violate the principle of freedom of economic activity and fair competition. EMPIK CAFE filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 23 April 2012 case file VI SA/Wa 2032/11 dismissed it. The Court held that the essential function of a trade mark, which follows from its very definition, is to distinguish the goods of one undertaking from those of other undertakings, and ruled that the advertising nature of a trade mark does not eliminate its recognition as a distinctive or nondistinctive sign. The Court repeated that rights of protection should not be granted for signs which are devoid of sufficient distinctive character, especially, signs which consist exclusively or mainly of elements which may serve, in trade, to designate the kind, origin, quality, quantity, value, intended purpose, manufacturing process, composition, function or usefulness of the goods. Descriptive signs may be one of the components of a trade mark, such as a specific binding word or symbol indicating a characteristic of the goods. Both, the legal commentators and the case law of administrative courts say the descriptive trade mark is a sign that has the characteristics of actual, specific and direct descriptiveness. The actuality of signs is examined objectively and leads to determining whether from the point of view of current market conditions such indication is useful for the description of the goods, and as such, it should be available for all participants. The rule of specific descriptiveness indicates that a sign is excluded from the registration as a descriptive only if it points to the specific characteristics of the goods, for which the trade mark is intended. The direct description occurs when a descriptive mark provides information about the characteristics of the particular goods directly, clearly and unambiguously, so that it may be well to read directly, and not by the way of connotations. Then a trade mark is assessed as a whole, and not only through the prism of one element – a descriptive word, but other accompanying elements. After all, not every slogan has to be registered. Of course, there is no normative definition of distinctiveness. Distinctiveness of a slogan serving as a trade mark must be sufficient. This means that in the minds of consumers the sign will be able to identify the origin of the product or service with an entrepreneur. It is therefore only possible if such belief collapse in the minds of consumers that the goods or services are produced under the control of a given company, and with its consent. This is the only way such a slogan as a trade mark will be recognizable, yet can serve as a valuable business asset.

Categories: Art. 129(1)(ii) IPL | Art. 129(2)(ii) IPL | Art. 131(1)(iii) IPL | descriptive character | distinctive character | Polish Act on Industrial Property Law | Polish courts | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 959/12

November 20th, 2012, Tomasz Rychlicki

The Polish Patent Office refused to grant the right of protection for the word-figurative trade mark Quatro Pak quality packaging Z-370075 applied for the goods in Class 16 such as paper, printed matter, instructional and teaching material (except apparatus) by the Polish company Sokpol sp. z o.o. The PPO decided that the applied sign is similar to the CTM QUATRO no. 005799325 and International registration QUATRO IR-0923559, both registered for the same goods in Class 16. Sokpol filed a complaint against such decision. The Company argued that the main element of its word-figurative sign are two words – QUATRO PAK, and not the word QUATRO itself.

Z-370075

The Voivodeship Administrative Court in its judgment of 3 October 2012 case file VI SA/Wa 959/12 dismissed it. The Court held that the assessment of the dominant meaning to the word elements in the word-figurative trade mark word is grounded in the belief that words are the most easily seen and remembered elements and thus are the most effective channels of communication with the customer. This assumption cannot be questioned only in relation to the words that carry a clear and understandable information to the average consumer, so to the words quite well-known and understood in the Polish language. There should be no doubt that the word QUATRO cannot be attributed to any clear and understandable information in Polish. Thus, it will be perceived by the average consumer as an abstract expression in relation to the goods bearing trade marks at issue.

Categories: Art. 132(2)(ii) IPL | Art. 151 PBAC | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish courts | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 1267/11

September 19th, 2012, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 3 October 2011 case file VI SA/Wa 1267/11 dismissed the complaint brought by the Polish law firm BSO PRAWO & PODATKI – Bramorski Szermach Okorowska Kancelaria Prawna Spółka komandytowa against the refusal decision of the Polish Patent Office to grant the right of protection for the word-figurative trade mark BSO legge & Tasse Z-344754.

Z-344754

The Court agreed with the PPO that the applied sign is almost identical with the word CTM BSO no. 001463017 and ruled that for the average recipient of legal services they are similar to intellectual property consultancy, patent, design and trademark agency, because the average consumer of legal services, who comes to the office lead by a legal advisor (radca prawny) or advocate, simply instructs his case in the belief that it returns to the competent professional. The Court could not deny the competence to lawyer who is dealing with the industrial property issues and cases, as this area of law is also subject to examination for people who would like to qualify to the legal profession. This judgment is final.

Categories: Art. 132(1)(ii) IPL | Polish Act on Industrial Property Law | Polish Patent Office | similarity of services | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Procedural law, case VI SA/Wa 1239/11

August 7th, 2012, Tomasz Rychlicki

On 1 March 1994, the company France-Euro Agro applied to the Polish Patent Office for the registration of the word trade mark SOBIESKI Z-130304 for goods in Class 33 such as alcoholic beverages except beer. In its decision of March 1997, the PPO refused to register the applied trade mark because of the similarity with the word-figurative trade mark A SOBIESKI POLISH VODKA R-85456 that was registered with the earlier priority for the same goods in Class 33. This trade mark is currently owned by BELVEDERE S.A. France-Euro Agro withdrew its request for re-examination of the case. However, on December 2005, BELVEDERE requested the PPO to repeal the refusal based on the provisions of Article 154 § 1 of the Administrative Proceedings Code – APC – (in Polish: Kodeks postępowania administracyjnego) of 14 June 1960, published in 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.

A final decision, on the basis of which none of the parties acquired any rights, may be at any time repealed or amended by the public administration authority which issued the decision or by the authority of higher level if it is justified by the public interest or fair interest of the party.

The Company noted that the risk of misleading potential consumers has been eliminated as the owner of both trade marks is now the same entity. BELVEDERE argued also that the PPO does not respect the constitutional rule of law and equal treatment of entities in the application of law, because it has registered three word-figurative trade marks Jan III Sobieski SJ for BRITISH AMERICAN TOBACCO POLSKA TRADING Sp. z o.o., despite the existence of the earlier right of protection for the trade mark A SOBIESKI POLISH VODKA R-85456. The PPO refused to repeal the decision of 1997. The PPO emphasized that decisions taken in such proceedings are discretionary, which means that the PPO examines, whether in the particular situation, the public interest or the fair interests of a party is in favor of the repeal of the final decision. The requirements of public interest or the interests of the parties must be assessed on an individual case and must receive individualized content, resulting from the factual and legal issues. The interest of the party should be “fair” within the objective meaning i.e. it has to be justified by circumstances of the case and accepted under applicable law, also from the standpoint of public interest. According to Polish legal doctrine, the term “public interest” is not defined by the law, and the content of this concept is given by the adjudicating body. The scope of the discretion of the administrative body during the recognition of such issues is limited, for instance by the existence of general principles of administrative proceedings, such as the public interest and fair interest of citizens. The fair interests of citizens is not only deemed as the interest of parties involved in this particular case, but also the interests of other parties to the proceedings before the Patent Office, in this case those who have applied for trade marks after the refusal of March 1997. By withdrawing the request for re-examination of the matter, France-Euro Agro waived its right to appeal, which led to the ultimate end of the proceedings and allowed other entities to apply for trade mark protection. BELVEDERE filed a complaint against this decision.

R-85456

The Voivodeship Administrative Court in Warsaw in its judgment of 7 December 2011 case file VI SA/Wa 1239/11 dismissed it and held that the proceedings to repeal the final decision should not be regarded as a retrial of the case. The Court held that both the institution of proceedings de novo, as well as the repeal of the final decision, are procedures used to verify the faulty decisions, that allows for setting the decision aside, in the situations specified by law, despite its finality. Given the exceptional nature of these procedures, they cannot be abused by a broad interpretation of the conditions of admissibility of their application. The overriding principle is to guarantee the sustainability of the final administrative decision. The Court agreed with the PPO that BELVEDERE could file requests for the invalidation of the rights of protection for trade marks JAN III SOBIESKI JS.

Categories: Art. 154 § 1 APC | Art. 2 Constitution | Art. 315 IPL | Art. 32 Constitution | Art. 9(1)(i) TMA | letter of consent | Polish Act on Industrial Property Law | Polish Act on Trade marks | Polish Administrative Proceedings Code | Polish Constitution | similarity of goods | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 1806/11

August 3rd, 2012, Tomasz Rychlicki

The Polish entrepreneur IT5.PL Anna Sasin applied to the Polish Patent Office for the right of protection for the word trade mark PsychoDietetyka Z-325335 for services in classes 35, 38, 39, 41, 42, 43 and 44. The PPO refused and decided that the combination of two words (English: Psycho and Dietetics) lacks distinctiveness and is descriptive for the applied services. The PPO ruled that the etymology of these two words is well known and easy to verify in publicly available dictionaries, or search engines. Psychodietetyka is the name of a program dealing with the causes of eating disorders and diseases associated with poor nutrition (including diabetes, obesity, anorexia, bulimia), that also indicates psychological factors in eating disorders, such as lack of motivation to fight obesity and overweight, emotional sphere, impaired perception of self, relationships with family, problems with identity formation. The PPO noted that if someone type the phrase psychodietetyka, many search results of that word appear in the web browser. IT5.PL filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 15 February 2012 case file VI SA/Wa 1806/11 dismissed it and noted that the combination of words lies in their simple fusion into one word, without giving them any unusual form of graphic or semantic, so that they could be deemed as distinctive for the marked goods. It did not matter that the applied sign was not present in a dictionary, because it is not a measure of distinctiveness of signs. The Court noted also that the Polish and European case-law presents both liberal and rigorous views on examination of descriptiveness of trade marks. However, the principle of individual assessment of each sign is consistent in the legal doctrine and jurisprudence. This judgment is final.

Categories: Art. 129(1)(ii) IPL | Art. 129(2)(ii) IPL | descriptive character | distinctive character | Polish Act on Industrial Property Law | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 1269/11

July 18th, 2012, Tomasz Rychlicki

On August 2008, the Polish law firm BSO PRAWO & PODATKI – Bramorski Szermach Okorowska Kancelaria Prawna Spółka komandytowa from Wrocław applied to the Polish Patent Office for the right of protection for the word-figurative trade mark BSO RECHT & STEUERN Z-344756, for legal services in Class 45. The PPO refused because of the similarity with the CTM BSO no. 001463017 registered with the earlier priority for services in class 41 such as education and providing of training relating to intellectual property, patent, trademark, design and legal matters and relating to research and development for others, and in Class 42 for services such as Intellectual property consultancy, patent, design and trademark agency, including legal consultancy, engineering services, research and development for third parties and computer programming and services in relation to computer hardware, all relating to intellectual property, patent, trademark, design and legal matters and relating to research and development for others. This CTM is owned by the Danish IP law firm BUDDE SCHOU A/S. The PPO stated that the phrase “Recht & Stenern” (English: tax and law) is devoid of any distinctive character, as an expression, which determines only the scope of activities. This expression is not noticeable in the sign, because it is written in very small letters at the bottom, so there is no significant impact on public perception. Undoubtedly for the PPO, the acronym BSO was predominant, and the fact that the applied trade mark consists of three words and the earlier sign only one – BSO, was not important in this situation for the assessment of similarity. The PPO concluded that the same assesment applies to the figurative element. BSO PRAWO & PODATKI filed a complaint against this decision.

Z-344756

The Voivodeship Administrative Court in its judgment of 3 October 2011 case file VI SA/Wa 1269/11 dismissed it. The Court ruled that a stylized symbol of section sign (paragraph) is generally accepted as an indication of the persons and entities providing legal services. Such a figurative element, no matter in what color or in any styling, recognizable as a double S symbol, is perceived to be connected with the law. It was difficult to accept that such an element, in a graphic that indicates the applicant’s company, would distinguish it from other law firms or companies providing legal services. The difference in the territorial operation of both companies was irrelevant for the PPO and the Court, because the CTM covers the entire territory of the European Union, and both companies are located there, in different Member States. This judgment is final.

Categories: Art. 123 IPL | Art. 151 PBAC | company name or firm | distinctive character | personal rights or interests | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish Patent Office | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 611/11

April 30th, 2012, Tomasz Rychlicki

The Polish Patent Office partially refused to grant the right of protection for the word-figurative trade mark moja historia Z-338905. This sign was applied for PHOENIX PRESS Sp. z o.o. Sp.k. from Wrocław for goods and services in Class 09, 16, 35, 39, 41 and 42. The PPO based its refusal in Class 09, 16 and 41 on the earlier registration of the word-figurative trade mark Moja historia R-187793 owned by WYDAWNICTWO ERA Sp. z o.o. from Straszyn. PHOENIX only agreed that both companies are publishers, but the signs are meant for other goods and are directed to another recipients. Phoenix is a press publisher whose clients are adult women and WYDAWNICTWO ERA is a publisher of school history textbooks (mainly the history of Poland), which customers are students in primary schools.

R-187793

The PPO decided that there exists similarity of signs and goods and services which may lead to consumers confiusion. PHOENIX filed a complaint against this decision. The Company argued inter alia that the PPO could grant the right of protection and it would not deprive WYDAWNICTWO ERA of protection provided for instance in the Polish Act on Combating of unfair competition, if PHOENIX’s trade mark would actually threaten the existence and functions of the trade mark owned by ERA.

Z-338905

The Voivodeship Administrative Court in Warsaw in its judgment of 8 June 2011 case file VI SA/Wa 611/11 dismissed the complaint. The Court ruled that regulations on combating unfair competition are provided in a separate act, and it is justified by both the construction of the Polish legal system and due to the method of regulation. The law on combating unfair competition does not create absolute rights, but only the system of legal claims that provides protection in the event of unwanted and objectionable market behavior and actions (unfair competition delicts or torts), which is a different approach than those adopted in the Polish Industrial Property Law, which are based on the granting of absolute rights (monopolies) by an administrative decision.

Categories: Art. 107 §3 APC | Art. 132(2)(ii) IPL | Art. 132(3) IPL | Art. 132(4) IPL | Art. 2 IPL | Art. 6 APC | Art. 7 APC | Art. 77 APC | Art. 8 APC | likelihood of confusion | personal rights or interests | Polish Act on Industrial Property Law | Polish Administrative Proceedings Code | Polish courts | press title | similarity of goods | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Procedural law, case VI SA/Wa 1855/11

April 19th, 2012, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 31 January 2012 case file VI SA/Wa 1855/11 dismissed the complaint against the refusal decision of the Polish Patent Office to grant the right of protection for the word trade mark GOLD CLA Z-330491. The Court held that the principle of citizens’ trust in state authorities and bodies, imposes on public authorities the obligation for lawful and fair conduct of the proceedings, which is expressed in a careful examination of the circumstances of the case, taking position to requests filed by parties and taking into account both the public interest and the legitimate interests of citizens in the issued decisions. However, this obligation cannot be based on the examination of the facts that were the basis for decisions taken in other specific, individual cases. All the circumstances which contributed to the registration of the trade mark in other proceedings for other entities are not circumstances that the Polish Patent Office should, and even could examine in a particular case.

Categories: Art. 132(2)(ii) IPL | Art. 151 PBAC | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish Patent Office | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case II GSK 1261/10

April 9th, 2012, Tomasz Rychlicki

The Polish Patent Office in its decision of 29 January 2010 case no. DT-581/08 refused to grant the right of protection for the word-figurative trade mark FILIPETTI MONTENERO SPUMANTE DEMI SEC DALLA TRADIZIONE ITALIANA Z-298140 that was applied for by Domain Menada Sp. z o.o. for goods in Class 33. The PPO decided that this trade mark is similar to the word trade marks FILIPETTI R-101614 and R-140718 owned by Belvedere S.A. Domain Menada argued that it is a part of the Belvedere Group, and provided a letter of consent. Domain Menada filed a complaint against this decision but the Voivodeship Administrative Court in its judgment of of 21 June 2010 case file VI SA/Wa 710/10 dismissed it. See “Trade mark law, case VI SA/Wa 710/10“. Domain Menada filed a cassation complaint.

Z-298140

The Supreme Administrative Court in its judgment of 8 December 2011 case file II GSK 1261/10 ruled that the letter of consent was not binding and the PPO examined its effects in different aspects, based on gathered evidence, and it found that the letter of consent is not an exemption to grounds for refusing trade mark protection. The SAC stressed that the system of registration of trade marks under the Polish Industrial Property Law is to guarantee the protection of the interests of businesses and consumers. Under the present regulations, the Polish Patent Office may refuse to register a trade mark, despite the agreement between the professional entities that are active in business, due to the risk of misleading and confusion of consumers as to the origin of the goods from a particular entrepreneur. In this sense, the mere will of particular businesses does not directly create and shape the public policy. The PPO is a public authority that takes a decision on the registration of a trade mark, taking into account ex officio circumstances specified in the IPL. The PPO is therefore bound by the provisions of generally applicable laws, and these – as it was indicated above – protect the position and the consumer’s interest.

Categories: Art. 131(1)(iii) IPL | Art. 131(3) IPL | Art. 132(2)(ii) IPL | Art. 143 IPL | Art. 144 IPL | Art. 145 IPL | Art. 151 PBAC | Art. 245 IPL | letter of consent | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish law | Polish Supreme Administrative Court | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case II GSK 1378/10

March 12th, 2012, Tomasz Rychlicki

The Polish Patent Office had refused to grant the right of protection for the word trade mark PUCHATEK CHOCO Z-321348 filed by Lubella Sp. z o.o. sp. kom. ak., for goods in Class 30. Lubella provided a letter of consent, which had been granted by Maspex Sp. z o.o., the owner of the prior-registered trade marks that include word element PUCHATEK. The PPO decided that it cannot consider the letter of consent, inter alia, for the reason that commercial relationships between the entities are not permanent. The use of a letter of consent in such a case could potentially cause problems when dealing with its withdrawal when the cooperation between the entities has ceased to exist. The PPO also remind that the Polish Industrial Property law provides for the institution of the letter of consent, only to signs whose protection lapsed. Lubella filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in its judgment of 20 July 2010 case file VI SA/Wa 600/10. Lubella filed a cassation complaint.

R-159163

The Supreme Administrative Court in its judgment of 16 December 2011 case file II GSK 1378/10 upheld the questioned judgment. The Court agreed with the PPO that Lubella was a different legal entity from the right holder of earlier trade marks that were considered as similar. The Court noted that it should be always borne in mind that the task of a trade mark is to distinguish the goods of one undertaking from those of other undertakings. The trade mark has to fulfill the function of determination of origin. This function is expressed objectively by commodity/goods, to which the sign is assigned, and it provides the consumer an idea about the qualities of a particular product, and subjectively i.e. the trade mark belongs to a given undertaking based on the right of protection that was granted to him or her, and it lets for the identification of the goods with the source that is indicated abstractly or by name. The protected trade mark should prevent from the risk of confusion on the part of consumers, because on the one hand it protects the economic interests of entitled entrepreneur, on the other hand it is aimed at consumers, in order to distinguish the origin of the goods. The SAC also reminded after the VAC that the Polish Patent Office does not examine the way in which the trademark is used on the market, except for its reputation, notoriety or secondary meaning i.e. acquired distinctiveness. The examination of a trade mark application is carried out in abstracto, that is, in isolation from market conditions.

Categories: Art. 120(1) IPL | Art. 120(2) IPL | Art. 132(2)(ii) IPL | Art. 133 IPL | letter of consent | Polish Act on Industrial Property Law | Polish courts | Polish law | Polish Supreme Administrative Court | similarity of goods | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case II GSK 72/11

February 29th, 2012, Tomasz Rychlicki

On 25 May 2006, the Polish company AERECO Wentylacja Sp. z o.o. applied for the word-figurative trade mark HIGROSTEROWANIE Z-311192 for goods in Classes 07, 09, 11 and 35. The Polish Patent Office refused to grant the right of protection, claiming that the applied sign does not have sufficient level of distinctive character. The PPO pointed out this trade mark is built from the core “sterowanie” (in English: controling/steering) and the prefix higro (English: hygro) which indicates a semantic link to the humidity. The sign that is created from these two elements, although not listed in dictionaries, is not a fanciful term and simply means “to regulate humidity”.

Z-311192

AERECO filed a complaint against this decision. The Voivodeship Administrative Court in Warsaw in its judgment of 8 September 2010 case file VI SA/Wa 1117/10 dismissed it, and ruled that both in the legal commentaries and the case law of administrative courts, it is considered in particular, that the descriptive sign is one that has the characteristics of the topical, concrete and direct descriptiveness. The topicality of the signs should be assessed on the objective basis and consist of examining whether from the perspective of current market conditions, a sign is useful for description of the goods and if as such it should be accessible to all participants. The rule of concrete descriptiveness states that a sign which indicates the specific characteristics of the product for which the designation is intended may be exempted from the registration as descriptive one. The direct descriptiveness occurs when a descriptive sign informs directly, clearly and unambiguously about the characteristics of a particular goods, so that characteristics may be interpreted directly, and not by associations.

The Court shared the position of the PPO, that the the questioned sign simply means “controling humidity” and thus explicitly indicates the characteristics of the designated goods and can not be appropriated to describe the products or services of one company. The VAC did not find anything fanciful in the figurative element of the HIGROSTEROWANIE trade mark. ARECO filed a cassation complaint but it was dismissed by the Supreme Administrative Court in its judgment of 29 February 2012 case file II GSK 72/11.

Categories: Art. 107 §1 APC | Art. 107 §3 APC | Art. 129(1)(ii) IPL | Art. 129(2)(ii) IPL | Art. 130 IPL | Art. 7 APC | Art. 77 APC | Art. 80 APC | distinctive character | Polish Act on Industrial Property Law | Polish Administrative Proceedings Code | trade mark examination | trade mark refusal | Voivodeship Administrative Court.

Trade mark law, case II GSK 1033/10

February 22nd, 2012, Tomasz Rychlicki

This is another part of the saga of trade marks consisting of numerals. On March 2003, Agencja Wydawnicza TECHNOPOL Spółka z o.o. applied for the word trade mark 100 PANORAMICZNYCH Z-261876 for goods in Class 16 such as newspapers, charade magazines, booklets, brochures, flyers, calendars, posters, exercise books.

The Polish Patent Office decided that it cannot grant rights of protection for signs which cannot constitute a trade mark, or are devoid of sufficient distinctive character. The PPO reminded that the following are considered as being devoid of sufficient distinctive character (i) signs which are not capable of distinguishing, in trade, the goods for which they have been applied, (ii) signs which consist exclusively or mainly of elements which may serve, in trade, to designate the kind, origin, quality, quantity, value, intended purpose, manufacturing process, composition, function or usefulness of the goods, (iii) signs which have become customary in the current language and are used in fair and established business practices. TECHNOPOL filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in its judgment of 24 April 2010 case file VI SA/Wa 410/10. TECHNOPOL filed a cassation complaint.

The Supreme Administrative Court in its judgment of 8 November 2011 case file II GSK 1033/10 repealed the contested judgment and returned it to the VAC for further reconsideration. The SAC agreed with allegations of violation of administrative proceedings that was based on erroneous findings that the disputed trade mark could not acquire secondary meaning. The Court noted that when the PPO is assessing whether or not a sign has a sufficient distinctive character, any circumstances accompanying its use in marking the goods in trade should be taken into consideration. Grant of a right of protection under previously mentioned rules may not be denied in particular where prior to the date of filing of a trademark application with the PPO, the trademark concerned has acquired, in consequence of its use, a distinctive character in the conditions of the regular trade. This indicates the possibility of acquiring secondary meaning by descriptive signs. In principle, secondary meaning can only be acquired by signs that are devoid of any distinctiveness, including descriptive or generic designations. Thus, the mere fact that the sign is purely informational does not preclude the acquisition of secondary meaning. Descriptive signs refer to the qualities or characteristics that may affect goods from various manufacturers.

Categories: absolute grounds for refusal | acquired distinctiveness | Art. 107 §3 APC | Art. 129(1)(ii) IPL | Art. 130 IPL | Art. 7 APC | Art. 77 APC | Art. 8 APC | Art. 80 APC | descriptive character | distinctive character | generic sign | personal rights or interests | Polish Act on Industrial Property Law | Polish Administrative Proceedings Code | Polish courts | Polish law | Polish Patent Office | Polish Supreme Administrative Court | press title | secondary meaning | trade mark examination | trade mark refusal | trademark law | Voivodeship Administrative Court.

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.

Categories: Art. 107 §3 APC | Art. 132(2)(ii) IPL | Art. 135 IPL | Art. 145 IPL | distinctive character | Polish Act on Industrial Property Law | Polish Administrative Proceedings Code | similarity of services | similarity of signs | trade mark refusal | Voivodeship Administrative Court.

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.

Categories: Art. 132(2)(ii) IPL | letter of consent | Polish Act on Industrial Property Law | Polish Patent Office | similarity of goods | similarity of services | similarity of signs | trade mark examination | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 1291/11

November 23rd, 2011, Tomasz Rychlicki

The Polish Patent Office refused to grant the right of protection for the word-figurative trade mark LAW24.pl applied for the Polish law firm Komarnicka Korpalski Kancelaria Prawna sp.j for services in Class 35 such as advising on business and business management consultancy, in Class 36 such as financial consultancy and financial and accounting activity, and in Class 42 such as legal services.

Z-341137

The PPO pointed out that the sign was applied for broadly defined legal services, and it cannot be registered because it lacks sufficient distinctive character, therefore it cannot be the subject of exclusive rights as others would have been deprived of the possibility to use it. The PPO noted that the applied trade mark is a company name, but there are different regulations regarding company names and the names of individuals. The PPO ruled that the right to the company name is not absolute, effective in relation to all (erga omnes). The PPO stated that the case of each applied trade mark is always considered individually on its specific conditions, so the argument that there is plenty of registered trade marks that include the word “law”, and the PPO should also grant the right of protection in this case, was rejected The PPO did not agree with the argument that recent visits to the website could prove that the trade mark in question has acquired secondary meaning. According to the PPO, the applicant has not submitted any evidence documents to confirm it. Komarnicka Korpalski Kancelaria Prawna filed a complaint against this decision.

The Voivodeship Administrative Court in Warsaw in its judgment of 31 August 2011 case file VI SA/Wa 1291/11 dismissed it. The Court agreed with the PPO and held that Internet address identifies a legal or natural person, but this identification is not equivalent, that the services provided by such person are marked with the same deisgnation.

Categories: absolute grounds for refusal | acquired distinctiveness | Art. 129(1)(ii) IPL | Art. 129(2)(i) IPL | Art. 129(2)(ii) IPL | Art. 151 PBAC | descriptive character | distinctive character | domain names | e-law issues | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish TLDs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 562/11

November 4th, 2011, Tomasz Rychlicki

The Polish Patent Office refused to grant the right of protection for the word trade mark flex fuga Z-297616 applied for by MAPEI POLSKA Sp. z o.o. for goods in Class 1 such as adhesives based on plastics and resins, silicone mortars, for goods in Class 6 such as decorative moldings, profiles, metal profiles, and for goods in Class 19 such as decorative moldings, profiles, profiles not made of metal, masonry mortars, dry plaster, mortars for grouting and welding.

The PPO decided that this trade mark is devoid of sufficient distinctive character and it lacks any additional elements, such as verbal or graphic, which would allow potential purchasers to identify the goods with the source of the origin of goods. The PPO noted that a fuga is a weld/joint between adjacent wall elements and flex means flexible in English.

MAPEI filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in Warsaw in its judgment of 26 August 2009 case file VI SA/WA 1017/09. MAPEI decided to file a cassation complaint. The Supreme Administrative Court in its judgment of 13 January 2011 case file II GSK 19/10 overturned the judgment of the VAC and held that the VAC relied on the erroneous assumption that the buyers (users) of goods bearing the trademark at issue are those who know English or use the Internet every day, which was not supported by any evidence. Besides, the trade mark flex fuga was applied for not only various types of mortars but also for various types of decorative moldings, profiles, sections of metal and non-metallic, and in relation to those goods it is difficult, to talk about “cut or bent” joint or weld.

The case went back to the Voivodeship Administrative Court. The VAC in its judgment of 9 May 2011 case file VI SA/Wa 562/11 held that the fact that the Polish Patent Office has granted the rights of protection for a number of trade marks containing the word “flex” or the word “flex” in combination with other words, should prompt the PPO to a broader examination of the merits of the MAPEI’s trade mark application. Thus, the PPO’s view that even if MAPEI relied on other decisions issued by the Polish Patent Office, it could not affect the assessment of the submitted application and its final examination, is not justified. The VAC noted that the PPO could change its position on the regularity of the grant of rights of protection, in which one element was the word “flex”, but it should justify such change in detail. The case law of the PPO may therefore be subject to change, if the authority demonstrates that there are reasonable grounds. However, any unfounded inconstancy of the opinion of the public body constitutes an infringement of the administrative procedure, because it may result in undermining citizens’ trust in state bodies and adversely affect the legal culture of citizens, and thereby cause a breach of the constitutional rule that all persons shall be equal before the law and all persons shall have the right to equal treatment by public authorities.

Categories: absolute grounds for refusal | Art. 107 §3 APC | Art. 129(1)(ii) IPL | Art. 129(2)(ii) IPL | Art. 130 IPL | Art. 32 Constitution | Art. 7 APC | Art. 77 APC | Art. 80 APC | generic sign | Polish Act on Industrial Property Law | Polish Administrative Proceedings Code | Polish Constitution | Polish Patent Office | trade mark refusal | trademark law | Voivodeship Administrative Court.

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.

Categories: Art. 107 §3 APC | Art. 132(2)(ii) IPL | Art. 145 PBAC | Art. 152 PBAC | Art. 252 IPL | Art. 7 APC | Art. 77 APC | Art. 80 APC | letter of consent | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish Administrative Proceedings Code | similarity of goods | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case II GSK 553/10

August 19th, 2011, Tomasz Rychlicki

Przedsiębiorstwo Przemysłu Spirytusowego POLMOS w Warszawie applied for the right of protection for the word trade mark „spirytus rektyfikowany” (in English: rectified spirit) Z-204843. The Polish Patent Office refused to grant the right of protection. The PPOo ruled that this designation is purely descriptive. It informs about the type of product and how it is produced, and while examined as a whole, this sign does not have any sufficient distinctive character in relation to goods for which it was filed. Therefore, it will not allow for the identification of the goods available on the market in terms of their origin. The PPO decided also that this sign is devoid of any characteristic features that may engrave into memory of the recipient and lead to the association with the entrepreneur, from which they originate. The recipient buying the goods bearing the sign in question will be informed about the characteristics of the product, not its origin. POLMOS claimed that „spirytus rektyfikowany” has acquired secondary meaning.

The PPO did not agree with the argument that a number of word-figurative trade marks containing the term “rectified spirit” that were registered for POLMOS supports the position that this trade mark has acquired secondary meaning, because all these trade marks were registered by the PPO because of its graphics and not the distinctive character of the disputed sign. The PPO concluded that the information on the secondary meaning posted on Wikipedia website can not be considered fully reliable evidence and Wikipedia cannot be treated as the professional source of information. The PPO noted that the fact that POLMOS was able to register the word mark “rectified spirit” in the United States has no impact on the examination of trademark application Z-204843, because the Polish system is completely autonomous. The PPO noted that even POLMOS is advertising its main product as a word-figurative trade mark, where both words are placed on the green-yellow label.

POLMOS filed a complaint against this decision but it was dismissed by the Voivodeship Administrative Court in its judgment of 14 December 2009 case file VI SA/Wa 1859/09. POLMOS filed a cassation complaint.

The Supreme Administrative Court in its judgment of 18 May 2011 case file II GSK 553/10 dismissed the complaint. The Court cited the Dictionary of Polish language, published by PWN SA, the Internet edition, in which the word spirit is defined as a generic name of a specific type of alcoholic product – a high percentage water solution of ethyl alcohol. The word “rectified” is as an adjective derived from the noun “rectification” and it means the separation of liquid mixtures by repeated evaporation and condensation. The concept of rectification is commonly associated with a technological process, even if the recipient does not know the specific method. In conjunction with the first of the words in the trade mark in question it is associated with a way to produce a particular product. The two words – “rectified spirit” – contain only information about the type of product and how to produce it, and as such do not have sufficient distinctive character. The SAC shared in this regard the view expressed by the Supreme Administrative Court in its judgment of 18 June 2008 case file II GSK 185/08. See also “Trade mark law, case II GSK 185/08“. The Court ruled that there was no reason to assign a long use and the reputation only to the “rectified spirit” designation as separated from other elements of a word-figurative trade mark that was corresponding to the label on the bottle. The SAC noted that a trade mark is an indivisible whole. The use of a word-figurative trade mark does not mean that association between the word element and a particular entrepreneur arise in the minds of the consumer.

Categories: acquired distinctiveness | Art. 184 PBAC | Art. 315 IPL | Art. 7(1) TMA | Art. 7(2) TMA | descriptive character | distinctive character | generic sign | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish Act on Trade marks | Polish courts | Polish law | Polish Supreme Administrative Court | trade mark examination | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case II GSK 466/10

July 5th, 2011, Tomasz Rychlicki

Aquatherm GmbH registered a single green color determined by RAL 150 60 40 as a trade mark IR-863506 for goods in Class 19 such as rigid pipes of polypropylene for the supply of drinking water and heating and air conditioning systems in houses, office buildings and industrial buildings. The Company sought the recognition of the protection of its trade mark on the territory of the Republic of Poland based on the provisions of the Madrid Agreement Concerning the International Registration of Marks.

IR-863506

On 11 July 2006, the Polish Patent Office transmitted to the International Bureau in Geneva a notification of the grounds which prevent the protection of an international trademark to be recognised on the territory of the Republic of Poland. The PPO decided that according to Article 120 of the Polish Industrial Property Law this trade mark cannot distinguish the goods, because it is a single color and it is devoid of sufficient distinctive character.

On 20 April 2007, the Patent Office sent a letter to the International Bureau with information concerning the correction of a clerical error in the notification dated 11 July 2006, informing that the provisional refusal to recognize the protection should include Article 129(1)(ii) and Article 129(2)(i) of the IPL and not Article 120 of the IPL. At the same time, the PPO did not consider the request of the Aquatherm GmbH to initiate an administrative hearing on the correction of this error. The PPO pointed out that the correction did not change the legal basis of the notification. The difference in the numbering of Articles 120 and 129 was a result of unfortunate, in this case, close arrangement of numbers 9 and 0 on the computer keyboard.

The Polish Patent Office in its decision of 9 May 2008 case DT-IR-863 506 refused to recognize the protection. Aquatherm GmbH filed a request for re-examination of the matter, but it was dismissed by the PPO in its decision of 10 June 2009 case PT-430/08 IR-863 506. The PPO did not agree with the Aquatherm GmbH that the registration on its behalf of the earlier trade marks such as IR-832895 or IR-837655 justifies the registration of the applied sign because each case is decided according to individual circumstances. The PPO held that it has not changed, as a result of correcting errors, the legal basis of the refusal.

Aquatherm GmbH filed a complaint against these decisions. The Company argued that the PPO infringed on Article 5(2) of the Madrid Agreement because it took its decision after the expiration of one year term that is calculated from the date of the international registration of the mark. The provisions that were used as the basis for refusal, were first indicated in the letter of 20 April 2007. Aquatherm GmbH argued also that the PPO mistakenly determined that the goods included in the list of goods and services are everyday consumer goods targeted for mass audiences, and that the green color is commonly used for the determination of water supply pipes, and aqueous solutions. According to the Company, the PPO has not made an exhaustive evaluation of the evidence, in particular, it completely ignored the key evidence submitted by the company in a statement of the Polish Corporation of Sanitary, Heating, Gas and Air-Conditioning Technology which included information on whether a given color may indicate the manufacturer
on the market of installations polypropylene systems, and whether the green color used as designation of pipes or installations allows the buyers to identify these products with Aquatherm GmbH.

The Voivodeship Administrative Court in its judgment of 3 December 2009 case file VI SA/Wa 1452/09 dismissed the complaint. The VAC held that the provisional refusal cannot be considered ineffective. According to the Court, the PPO indicated the grounds for refusal which was in accordance with the Rule 17 of the Common Regulations under the Madrid Agreement Concerning the International Registration of Marks and the Protocol Relating to that Agreement. The Court noted that in the case of color per se its concrete distinctive ability must be interpreted in the light of public interest, which is based on the rules of the limited reduction of the availability of colors for other entrepreneurs who offer goods or services of the same kind as the goods or services covered by the registration application. The basic function of the trade mark is to guarantee the final consumer or user the identity of the origin of the goods or designated services bearing the trade mark by letting them distinguish the goods or the service of goods or services of different origin. The distinctive character of the sign is based on such features which in the minds of consumers clearly indicate that a particular product bearing a given trade mark comes from the specific company. The VAC noted that in relation to the color per se, it is assumed that the existence of primary distinctive characteristic (without any prior use) is possible only in exceptional circumstances, especially when the number of goods or services for which the mark is applied for is very limited and when the relevant market is very specific. The Court noted that the green color in relation to the applied goods is not unusual. The VAC agreed with the PPO that, in the case of green color used for the pipes used for water flow, there is a risk that consumers will associate it with nature, therefore, it should not be monopolized by one company, in particular, that this shade of green RAL 150 60 40 is also not original.

Moreover, the VAC found that the Patent Office has rightly used the example of PN-70/N-01270 standards Guidelines for marking of pipelines. The standard recommends that the painting for the identification of pipelines made ​​of carbon steel or other materials susceptible to corrosion should be coordinated with anticorrosive painting in which the topcoat should also fulfill the function of identification. It is customary to use green for water and chemical solutions that pose no chemical and thermal threat. The Court noted that the statement of the Polish Corporation of Sanitary, Heating, Gas and Air-Conditioning Technology could be helpful to support Aquatherm position, but also found that such a document can not be regarded as expert evidence under the provisions of Polish Administrative Proceedings Code or substitute evidence for opinion polls.

The Supreme Administrative Court in its judgment of 15 April 2011 case file II GSK 466/10 dismissed the cassation. The SAC agreed with the findings included in the judgment of the VAC and ruled that the provisional refusal to recognize the protection is, by its very nature, some kind of a general statement issued by an authorized body of the state that is the party to the Madrid Agreement, and it includes the grounds which prevent the protection of an international trademark to be recognized on the territory of the Republic of Poland. The reasons given in the notification of provisional refusal set the boundaries within which the Polish Patent Office then investigates the case and its matter. However, as it was mentioned, the notification is of a general (signaling) nature and it is clarified in a subsequent administrative proceedings. In the event of a dispute, the position included in the notification is subject to detailed examination by the administrative courts, reflecting inter alia the context of a trade mark application, the nature of the applied sign, etc. As a consequence, the reasons of a provisional refusal should be explained in general terms and take into account all the circumstances specified in the notification by the authority.

Categories: absolute grounds for refusal | Art. 107 §1 APC | Art. 120(1) IPL | Art. 120(2) IPL | Art. 129(1)(ii) IPL | Art. 129(2)(i) IPL | Art. 133 §1 PBAC | Art. 141 §4 PBAC | Art. 151 PBAC | Art. 174 PBAC | Art. 3(1)(b) Directive 89/104 | Art. 5(2) Madrid Agreement | Art. 6quinquies Paris Convention | Art. 7 APC | Art. 77 APC | Art. 8 APC | Art. 80 APC | Directive 89/104/EEC | distinctive character | International law | non-traditional trade marks | Paris Convention | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish Administrative Proceedings Code | Polish Supreme Administrative Court | single colour | trade mark refusal | trademark law.

Trade mark law, case II GSK 206/06

April 25th, 2011, Tomasz Rychlicki

On 16 July 1996, the Polish Patent Office refused to grant the right of protection for the figurative trade mark DVORAK IR-639197. On 27 August 2003, the PPO upheld its decision and ruled that the sign in question is similar to two figurative trade marks R-79913 and R-80064 that were registered with an earlier priority for POLMOS S.A., and it violates the rights of third party, by using elements that are incorporated in earlier registered industrial designs Rp-1 and Rp-2 that are also owned by POLMOS.

IR-0639197

The Supreme Administrative Court in its judgment of 18 January 2007 case file II GSK 206/06 held that the registration of a trade mark whose description largely overlaps with the description of the industrial design that was previously registered to another company, without its permission, is a violation of the rights from the registration of industrial designs and meet the grounds for refusal of registration of the mark because it infringes the personal or economic rights of third parties. See also “Polish regulations on industrial designs” and “Polish case law on industrial designs“.

Categories: 3D trade mark | Art. 8(1) TMA | Art. 8(2) TMA | Art. 9(1)(i) TMA | industrial designs | infringement of registered industrial design | invalidation of a right in registration | non-traditional trade marks | Polish Act on Trade marks | Polish Supreme Administrative Court | product packaging | trade mark refusal | trademark law | Voivodeship 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.

Categories: Art. 107 §3 APC | Art. 132(2)(ii) IPL | Art. 7 APC | Art. 77 APC | Art. 8 APC | Polish Act on Industrial Property Law | Polish Administrative Proceedings Code | similarity of goods | similarity of services | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 1104/10

March 17th, 2011, Tomasz Rychlicki

DOMAIN MENADA Sp. z o.o. applied for the right of protection for the word trade mark “TCHERGA – ŻYJ KOLOROWO” for goods in Class 33 such as alcoholic beverages (except beers). The Polish Patent Office refused to grant the right of protection because it found similarity with the earlier trade mark TCHERGA IR-0829406 owned by Droujestvo S Ogranitchena Otgovornnost BELVEDERE Capital Management.

IR-0829406

DOMAIN MENADA pointed out that it is a controlled company and the Bulgarian entrepreneur is the controlling one, where both enterprises form a homogeneous capital group and remain inseparable commercial contacts and in the interest of both parties is that DOMAIN MENADA is granted the right of protection for a trademark in question and a letter of consent signed by the Bulgarian company was a proof of such an approach. DOMAIN MENADA argued that the same evidence was brought in case of the “TCHERGA CRAZY FOR COLOUR” trade mark R-196255, in which the Polish Patent Office granted the right of protection.

The PPO noted that all relationships between entrepreneurs, can only be the basis for granting a license to use the trade mark. The provisions allowing for a letter of consent in relation to the trade mark rights remaining in force are not provided in Polish law. The Polish Industrial Property law introduced regulations on a letter of consent in a limited extent in the case of applying for the right of protection for a trade mark in respect of identical or similar goods, if the trade mark is identical or similar to a trade mark earlier registered in the Republic of Poland, whose registration has terminated. The right holder of the earlier right may give his/her consent for the later trade mark being granted a right of protection. The PPO noted that the TCHERGA CRAZY FOR COLOUR R-196255 was registered before the Supreme Administrative Court rendered a judgment 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 Poland did not implement Article 4(5) of the First Council Directive 89/104. See “Trade mark law, case II GSK 279/07“. Domain Menada filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 12 January 2011 case file VI SA/Wa 1104/10 dismissed it and ruled that capital or organizational or personal links between enterprises cannot justify and serve as the sole reason for granting the right of protection for a trademark.

Categories: Art. 132(2)(ii) IPL | Art. 133 IPL | Art. 4(5) Directive 89/104 | Directive 89/104/EEC | letter of consent | Polish Act on Industrial Property Law | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 1122/10

February 11th, 2011, Tomasz Rychlicki

The Voivodeship Administrative Court in its judgment of 25 October 2010 case file VI SA/Wa 1122/10 ruled that a trade mark application and examination case cannot be decided based on general assumptions and in an automatic way, because it is always resolved with regard to its specific conditions and references. The Polish Patent Office is required to conduct proceedings in such a way as to increase the trust of citizens in the State bodies and public awareness and appreciation of the law. According to the mentioned above principles, the PPO is required to precisely explain the circumstances of the case, respond to all claims and allegations and to include both public interest and the interests of the party, in the decision rendered.

Categories: Art. 107 §3 APC | Art. 120(1) IPL | Art. 120(2) IPL | Art. 130 IPL | Art. 132(2)(ii) IPL | Art. 151 PBAC | Art. 162 IPL | Art. 245 IPL | Art. 7 APC | Art. 77 APC | Art. 80 APC | Polish Act on Industrial Property Law | Polish law | similarity of goods | similarity of services | similarity of signs | trade mark examination | trade mark refusal | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 1650/10

January 24th, 2011, Tomasz Rychlicki

The Polish Patent Office received a request for the conversion of the CTM FOX Petroli S.p.a. application no. 002672533. This sign was applied for the good in Class 4 such as petroleum, industrial oils and greases, lubricants, fuel (including motor spirits). The PPO refused to grant the right of protection because it found similarity between the applied sign and the word trade mark FOX-OIL R-96049 and word-figurative trade mark FOX-OIL R-96843, both registered for goods in Classes 04, 19 and 39 and owned by FOX-OIL I. Olszewska, W. Okoniewski Spółka jawna from Gdańsk. The PPO ruled that the signs share the same word element, and in case of figurative elements, the word FOX has been particularly exposed. FOX Petroli S.p.a. filed a complaint against this decisions.

CTM 002672533

The Voivodeship Administrative Court in Warsaw in its judgment of 13 December 2010 case file VI SA/Wa 1650/10 dismissed it. The Court ruled that the average consumer of a particular type of goods is perceived as a person who is reasonably well informed and reasonably observant and circumspect.

R-96843

The Court confirmed also the consistent opinion that the level of the average consumer’s perception may vary depending on the type of goods or services. The VAC held that the goods belonging to the group of petroleum due to the development of technology (including automotive) are treated as everyday use goods.

Categories: Art. 132(2)(ii) IPL | conversion of CTM application | Polish Act on Industrial Property Law | similarity of goods | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 1090/10

January 20th, 2011, Tomasz Rychlicki

Polish entrepreneur “MALWA” Tea Wojciech Fabisiak from Lubiszyn applied for the right of protection for FITO APTEKA Z-327704 trade mark for goods in Classes 05, 30, 35 and 39 such as medicinal tea, medicinal drinks, medicinal herbs, tinctures of herbs for medicinal purposes, extracts of herbs for medicinal purposes, herbal tea, medicinal herbs, dried herbs, herbal mixtures for medical purposes, tea, ice tea, fruit tea, instant tea, coffee, coffee substitute, coffee substitute vegetable preparations, retail services and/or wholesale to third parties in the field of herbs, packaging of herbs, tea packaging. The Polish Patent Office refused to grant the right of protection. The PPO found that the sign in question contains two verbal elements “Fito” and “Apteka”. The word “fito” according to the Dictionary of Foreign Words PWN (published by PWN, in 1993) is a first element of compound words that are denoting plants, for plants (from Greek “phyton” – plant). The word “Apteka” (in English: pharmacy) indicates the type of store where drugs are sold or made, as well as herbs, some cosmetics, pharmaceuticals, herbal teas, coffee. The PPO ruled that the applied signs lacks distinctive character. MALWA filed a complaint against this decision.

The Voivodeship Administrative Court in its judgment of 17 November 2010 case file VI SA/Wa 1090/10 dismissed it. The VAC agreed with the PPO and held that the trade mark is devoid of distinctive character, where the words making up the sign in question have their specific meaning, both alone and in combination. The trade mark should provide information on the origin of goods from a particular manufacturer, and no information about the type of goods. The Court ruled that in case of word trade marks the criteria for granting a right of protection are much stricter than for word-figurative trade marks (combined signs) due to less room for maneuver for other businesses wanting to use a given word. The registration of a word trade mark, which lacks fanciful elements, but consist of a generic name, may unreasonably restrict the right of other entrepreneurs to describe their products.

Categories: Art. 107 §3 APC | Art. 120(1) IPL | Art. 120(2) IPL | Art. 129(1)(ii) IPL | Art. 129(2)(ii) IPL | Art. 151 PBAC | Art. 7 APC | Art. 77 APC | Art. 80 APC | descriptive character | distinctive character | Polish Act on Industrial Property Law | Polish Act on Proceedings Before Administrative Courts | Polish Administrative Proceedings Code | trade mark refusal | trademark law | Voivodeship Administrative Court.

Trade mark law, case VI SA/Wa 1127/10

January 13th, 2011, Tomasz Rychlicki

POSTI S.A. applied for the word-figurative trade mark “POSTI Fitea man HERBATKA WSPOMAGAJĄCA ODCHUDZANIE z owocem z czarnego bzu i anyżem doskonały smak świetny efekt” Z-334117 for foods in Classes 05 and 30. The Polish Patent Office refused to grant the right of protection. The PPO ruled that there exist similarity between applied sign and the word-figurative trade mark “fittea” R-178995 owned by “BIOFLUID” Spółka Jawna from Górki Małe. POSTI filed a complaint against this decision.

Z-334117

The Voivodeship Administrative Court in its judgment of 5 November 2010 case file VI SA/Wa 1127/10 anulled the decision. The Court ruled that the PPO examined only verbal elements of both signs. The VAC ruled that the main distinguishing element of marked goods or services is, in principle, the word, because the recipient usually remember the sign and the marked product (service) based on the verbal element/s.

R-178995

However, the principle of the dominant meaning of the word elements in the combined trade marks is fully applicable, particularly when figurative and 3D elements have less distinctive character, or are completely devoid of this ability. This judgment is not final yet.

Categories: Art. 132(2)(ii) IPL | Art. 145 IPL | distinctive character | Polish Act on Industrial Property Law | similarity of goods | similarity of services | similarity of signs | trade mark refusal | trademark law | Voivodeship Administrative Court.

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