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FRIDAY, 13 NOVEMBER 2009
Poland: can real food serve as a trade mark?
The Polish company PRAWDZIWE JEDZENIE Sp. z o.o. from Nowy Sącz applied to register word trade mark PRAWDZIWE JEDZENIE Z-313084 in class 29 for goods such as: foodstuffs of animal origin, as well as vegetables and other horticultural products suitable for consumption or preservation, especially meat, fish, poultry, meats, canned mushrooms, cheese, milk, cream, butter, eggs, milk beverages with milk predominating, marmalades, in class 30 for goods such as: foodstuff of vegetable origin intended for consumption or preservation, especially bread, cereal, pastry and confectionery, honey and in class31 for goods such as: unprocessed agricultural products in particular: fresh fruits and vegetables, mushrooms, forest products.
In a decision of 27 February 2008, The Polish Patent Office refused to grant the right of protection for PRAWDZIWE JEDZENIE trade mark due to its lack of sufficient distinctive character referring to all the goods. The PPO found that the sign PRAWDZIWE JEDZENIE (REAL FOOD) is so common that recognizing it as a trade mark for particular goods is not possible. The PPO ruled that the registration would be contrary to provisions included in article 129(2)(ii) of the Polish Act of 30 June 2000 on Industrial Property Law - IPL - (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Dziennik Ustaw (Journal of Laws) of 2001 No 49, pos. 508, consolidated text on 13 June 2003, Dziennik Ustaw No 119, pos. 1117, with later amendments:
2. Subject to Article 130, the following shall be considered as being devoid of sufficient distinctive character:
(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,
On December 2009, after rehearing the case, the Polish Patent Office uphold its arguments in whole. The PPO also cited the CFI's judgment in case T-127/02, Concept v. OHMI (ECA).
Prawdziwe Jedzenie Company filed a complaint to the District Administrative Court in Warsaw.
The DAC in its judgment of 20 May 2009, case act signature VI SA/Wa 243/09 held that:
The distinctiveness of each trade mark is assessed individually, based on the applicable legal norms and the issue of whether it concerns a pure word mark or a figurative trade mark with a dominant graphics cannot be bypassed, especially if the protection is expected to be granted to words of informational nature.
Legal norms included in article 129(2)(ii) of the IPL prevent situations of depriving the competitors from informing the buyers about the character of goods, by the exclusive use of a registred trade mark. Granting the right of protection to information which serve as a trade mark about a quality of food product, its taste or qualities would lead to ensure a monopoly, or granting the exclusive use of it to only one entrepreneur.
The judgment is not final yet.
Posted by: Tomasz Rychlicki @ 17.23
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