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A, for goods in Class 33 such as vodka. The trade mark represents a glass bottle with a blade of grass put inside, and the crest on the bottle. The blade of grass inside a bottle may give potential customers certain associations that it is a vodka based on wisent grass. The PPO has decided that the vodka producers could use the trade marks containing a blade of grass to indicate the type of vodka.
The PPO ruled that these signs are examples of commonly used vodka bottles that were sold in the 80s and 90s of the last century.
Such bottles are also present in considerable numbers in the Polish market. Thus, these signs per se do not possess distinctive characteristics. A distinctive and visually appealing packaging may cause the client to choose the particular product. The PPO cited K. Imitation of packagings of branded products in the light of intellectual property rightsWarszawa The VAC decided that the analysis of similarity between the signs including its reputation, in this case, was not exhaustive.
The PPO did not consider the dominant elements that draw the attention of the buyer. Although PPO stated that the compared trade marks are 3D signs, but the examination of these elements was reduced to comparison of packages only, i. Although, the PPO stated that as a principle, the visual aspect of a 3D sign, is the shape of package and its content, but these two issues the shape and contents were separated in the analysis carried out in this case.
The Court found that the long time existence of the characteristic element of 3D signs owned by Polmos Bialystok that were intended for designating vodka products and alcoholic beverages — a blade of grass placed in a simple, transparent bottle, as a whole can easily sink into the minds of customers and build the strength that distinguishes this kind of packagings.
This would mean that for consumers, contrary to the assessment of the PPO, this 3D element constitutes the dominant part of the trade mark, and it can also influence the perception of the trade mark reputation and the need for protection against dilution. However, in situation, when the package is transparent, placing a characteristic element inside of the packaging, determines distinctiveness of the whole sign, e.
The distinctive 3D form — a blade of grass in the bottle increases the message of each of the word trade marks, brings more originality to signs that are protected for over 20 years.
It was impossible to overlook the fact that consumers are seeing a bottle with a characteristic blade of grass, that is associated by them not only with visent vodka, but they also have a guarantee that this is the original product whose reputation was proved by complex evidence. The fact is that all signs have a distinctive element. This is another part of the saga of trade marks consisting of numerals.
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.
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.
The PPO invalidated this trade mark and ruled that this designation is descriptive and informative, because it is carrying explicit message on the number and type of crosswords included in each copy of the magazine. The PPO ruled that this trade mark lacks distinctiveness.
Technopol filed a cassation complaint. The practice of different publishers who used different numbers and numerals in tiles of magazines did not allow for to acquire secondary meaning. This case went through all instances. The PPO held that this trade mark is not sufficiently distinctive and that the sign is purely descriptive and therefore can not be covered by the right of protection. The assessment of whether a sign has a secondary meaning acquired distinctiveness must be decided by examining all the facts such as time of use, its market share, the ways and intensity of use, and all the data showing that a given group of customers will evidently assign the sign and the goods to a particular trader.
As it was clear from case files, the only evidence provided by PMB was statements of sales of products marked with the questioned sign as of January The issue of acquisition of secondary meaning acquired distinctiveness is taken into account together with all the circumstances of the presence of a sign on the market, including such as: Such evidences must come prior to the date of filing of a trademark application with the Polish Patent Office.
The Court commented on the Community case law in which the evidence of secondary meaning is also allowed from the period after the date of trade mark application, if they show that acquired distinctiveness already existed at that date.
This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.
In Octoberafter re-hearing the case, the PPO upheld its decision of Panoramicnych on the grounds that the assessment of similarity between both signs should be based on the overall impression both marks have on the consumer.
Panoramiczncyh to the PPO the distinguishing strength of the disputed signs should be taken into account, including its distinctive and dominant components. As usual, both trade marks should be compared in three aspects: However, the PPO also noted that the 3D trade panoramicznyc owned by Baccardi posses some features that are not common and are not reproduced in other 3D forms of bottles.
The most panoramicznycb element is the characteristic cut on both sides of the bottle. Along with all the rest it gives a unique shape to the bottle.
Thus, in the assessment made by the PPO, the earlier trade mark as a whole had the distinctive character which allowed the PPO to issue a positive decision on the recognition on the territory of the Republic of Poland of the protection for the international trademark. While deciding on the pamoramicznych made by the Polish Company, the PPO came to the conclusion that the differences between disputed trade marks are not so noticeable and the risk of confusion by the average consumer of such goods is significant.
The Polish Patent Ooffice pointed out that, if looked at the specific conditions of trade it should take into account the way in which the applicant puts its goods on the market.
Some information regarding this issue were presented in the observations filed by Bacardi on 26 August as to the existence of grounds that may cause a right of protection to be denied in connection with the application Z These materials proved that the Polish company markets products that are the imitation of alcohol produced Baccardi.
Only after having determined that a sign may be a trade mark it shall be examined whether such sign has sufficiently distinctive characteristics, to check out whether a panoramiczncyh is capable to distinguish on the market the specific goods for which it was applied for.
Rights of protection shall not be granted for signs which: The lack of panoramicznyfh character is an absolute obstacle to trade mark registration, however, characters devoid of this charateristics can acquire it as a result of use.
Pamoramicznych distinctive character of a trade mark is fitted with such features, which in the minds of consumers it clearly indicate that the goods identified by it come from the specific company. The court cited doctrinal approach to the distinctiveness of a trade mark a book by professor Urszula Panoramiczngch entitled Prawo wlasnosci przemyslowej published by Difin, Warszawaedt.
The assessment of a distinctive character is the result of two quite different elements. In examining signs panormicznych cannot distinguish the goods, it should be noted that such sign does not posses any characteristics in its tructure thus such sign as a whole is devoid of a sufficient distinctive characteristics and it is not suitable for the identification of goods, and therefore is does not have the ability to distinguish its origin.
This is a category of signs that emerged of its structural features such as a form which is the representation of the product, its generic name, etc. Panoramicznycu court rejected the complaint. The Polish newspaper Rzeczpospolita reports recent cases act signatures Sp. Panoramicnzych parties are involved into a dispute as to whether the PowerControl mark is a sign of fanciful character and whether it has sufficient ability to distinguish the goods of one undertaking from the another.
The Polish company from Opacz applied for a trade mark registration for PowerControl inin class 9 cables and electrical wires, electrical controls of light, signals and switching and in class 35 sale of various goods in a shop with wiring articles.
The PPO has issued a favourable decision and registered this trade mark inR The patent attorney who is representing the company from Germany declared that one can not claim such simple words power and control as a trade mark, it gives the owner a monopoly on the use. The sign creates a cluster of words whose meaning is known in Poland.
There are thus distinctive capabilities which are required for a brand. Panoramiczbych it must identify the goods of an entrepreneur. But the Polish company argued that a sign which is composed of foreign words can be considered fanciful in Poland.
Therefore PowerControl is able to distinguish goods, especially technical equipment. The Polish Patent Office the PPO decided that the contested mark had no distinctive character and it only indicated a specific kind of alcohol and method of production.
The Court held that both signs were word-figurative marks and should be perceived and examined as whole. The Court found that Polmos in Warszawa was seeking exclusive rights in the spirytus rektyfikowany sign, which was a purely informative term to be found in Polish dictionaries and official norms.
This case is the leading example of problems with trade mark portfolios of companies that were privatized in Poland after A sign acquires the secondary meaning, if it lacked the distinctive character earlier, but during the use it became the source of information about the origin of a product. The applicant was arguing panoramicznyych the questioned sign does not have a distinctive character.
The PPO claimed that the word of calcium derived from the Latin and has no distinctive character, i. While referring to the possibility of acquisition of secondary meaning the PPO held that the owner did not provide any evidence on this circumstance. The PPO considered that the mere fact that the company made a substantial investments in product advertising, or show significant sales, does not constitute itself a secondary meaning. The Court stated that the sign is devoid of any fanciful elements, purely informational — indicating that the product is a calcium with vitamin C.
The VAC ruled that in the interest of manufacturers of the pharmaceutical products is the exclusion of such signs from the registration, otherwise one individual panoramicznycn could monopolize the use of these signs and that would lead to serious and unjustified restrictions on the activities of other entrepreneurs. The VAC restricted itself to general statements.
However, the SAC noted that is has to be remembered that a trade mark acquires distinctive character as a result of its use only when a sign is able to identify the goods as pannoramicznych from a particular entrepreneur.
Undoubtedly for the SAC the facts in this case were not examined in detail and exhaustive. The Court ruled that the administrative proceedings that concerns the invalidation of the right of protection does not exclude the duty of the administrative body the PPO to take all necessary steps to clarify the facts of a case and panoramicznyhc resolve it and to comprehensively collect and examine all evidential material, although the burden of proof rests on the one who has the legal interest.
The Court cited W.
The informational character of a trade mark is not changed when someone is using a sign from foreign language, even in case of terms that come from a dead language e. Latinwhen it concerns the professional, or a part of the general Polish vocabulary. The Court concluded that in any case, it would not have been justified to say that the fact that a sign contains information about the composition of a product, a limine precludes its recognition as a fanciful and bars the opportunity to register it as a trade mark, especially since it is possible to acquire secondary meaning.
Trade mark law, cases Sp. The Polish Patent Office has not yet resolved the dispute.