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MONDAY, 15 MARCH 2010
Poland: the law of prägnanz in the trade mark law
In May 2006, the Polish Patent Office (PPO) granted the right of protection for COROVIN R-173989 trade mark. Coroplast Fritz Müller GmbH & Co.K.G. the owner of COROPLAST R-91907 trade mark filed a notice of opposition to this final decision of the Patent Office on the grant of a right of protection. The German company argued inter alia that both signs are similar. The PPO rejected the opposition and the German company filed a complaint to the Voivodeship Admnistrative Court (VAC) in Warsaw.
The VAC in a judgment of 4 January 2010, case file VI SA/Wa 442/09 applied rules of the law of prägnanz (German: pithiness) while deciding this case on the grounds of the similarity of signs. The Court ruled that by creating specific stimuli, one can manipulate the external context, and by influencing the human experience, one can manipulate the internal context. The law of proximity states that elements close to each other compared with other, more distant elements form the figure. The law of similarity based on the law of proximity in relation to similar elements, indicates that human perception can give rise to a new separate figures, and a new association. Next, the law of closure indicates that the perceptual system adds the missing elements and closes the form of incomplete figures, and in this case one can add to the already existing characters CORO other letters. It should be noted that the human being creates the perceived reality based on the interaction of knowledge that flows from the various branches and experience, with received stimuli. So it may be, in this case. Human knowledge derived from other branches of science may "complete" the lack in the designation and close this sign.
Therefore, the VAC annulled the contested decision, and ruled it unenforceable. This judgment is not yet final. The party unsatisfied with the ruling may file a cassation complaint to the Supreme Administrative Court.
Posted by: Tomasz Rychlicki @ 15.13
Tags: Voivodeship Administrative Court, similarity of signs, trademark law, Polish Patent Office, law of prägnanz, |
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MONDAY, 15 MARCH 2010
Lufthansa's AirPlus International can't halt A+
A subsidiary of German flagship airline Lufthansa has failed in its appeal against the decision of the OHIM Board of Appeal to allow registration as a Community trade mark of the A+ figurative mark shown here. The airline had maintained that the applied mark was confusingly similar to its earlier Community trade mark AirPlus International. Both the earlier mark and the later application were direct ed at numerous goods and services, but any overlap for goods or services was of no avail since the two mark were just not sufficiently similar to support the contention that there would be any likelihood of confusion: Case T‑321/07, Lufthansa AirPlus Servicekarten GmbH v Office for Harmonisation in the Internal Market, Applus Servicios Tecnológicos, SL.
Posted by: Jeremy Phillips @ 05.56
Tags: CTM opposition, |
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SUNDAY, 14 MARCH 2010
Poland: nuances in advertising of pharmaceutical products
The Main Pharmaceutical Inspector (MPI) found that Polish Federation for Women and Family Planning (in Polish: Federacja na rzecz Kobiet i Planowania Rodziny) is publishing the names of contraceptives on its Internet website, and therefore the Federation advertises these products. The MPI ordered the immediate cessation of such actions because it may encourages the use and prescription of such medical preparations and public advertisement of medicinal products as contraceptives, that are issued only on prescription, is prohibited by provisions of the The Polish Act on Pharmaceutical Law.
Advertising a medicinal product shall mean any activity consisting in informing about and encouraging to use the medicinal product
The Federation filed a complaint to the Voivodeship Administrative Court (VAC) in Warsaw. The VAC in a judgment of 3 March 2009, case file VII SA/Wa 2108/08, has overturned the decision of the GIF, but only because the incomplete material was submitted. The VAC agreed that MPI's decision was justified with regard to cessation of public advertisement of contraceptives. The Federation filed a cassation complaint.
The Supreme Administrative Cort (SAC) in a judgment case file II GSK 461/09, ruled that the provisions of Polish Pharmaceutical law are legible and obvious, but they must relate to the circumstances of a particular case and to all reasons of actions taken in order to inform about the medicinal product. According to the SAC these circumstances were not considered and the VAC also omitted the statutory objectives of the Federation. The major role of the Polish Federation for Women and Family Planning is to inform of the various methods of family planning. Publishing the name of contraceptives, cannot be treated as an encouragement for its use. The information does not come from the responsible entity, and the publication of characteristics of medicinal products is not considered as advertising. If the order issued by the MPI was sustained, such information could not be published at all.
Therefore, the SAC annulled the questioned judgments of the Voivodeship Administrative Court and returned the case to the VAC for reconsideration.
See also Class46 post entitled "Poland: first judgment on differences between sponsorship and advertising of pharmaceutical product".
Posted by: Tomasz Rychlicki @ 00.18
Tags: Main Pharmaceutical Inspector, advertising of pharmaceuticals, Voivodeship Administrative Court, Supreme Administrative Court, pharmaceuticals, |
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FRIDAY, 12 MARCH 2010
New Romanian mandatory mediation to help settle TM disputes
With effect from Wednesday 3 March 2010 mediation -- which has been available in Romania since 2006 -- has become mandatory for all civil disputes and simple criminal cases.
The parties involved in the dispute will be obliged to seek to resolve each issue through mediation before turning to court. If a trial has already been initiated, the parties may request its suspension for a maximum of three months in order to try to settle the case through mediation. If the parties bring the case to court directly, the judges will require them to attempt mediation first, resorting to court only if mediation fails.
This measure, mainly enforced to ease the courts’ caseloads, is advantageous for the parties involved in disputes, as it is shorter and less complex and costly.
While approaching the other party with the purpose of amicable settlement was often used by trade mark owners before initiating a court action, it was not always taken into consideration as a way of resolving a conflict.
Mediation should be seriously considered as an alternative to the traditional judicial system, especially because of the saved time and money.
With ordinary trials before the Romanian courts, on average two to three years pass before a definitive and irrevocable decision is reached. During this time, IP rights owners cannot fully benefit from their rights and they also spend the unnecessary money and energy.
The advantage given by the mediation procedure is that the disputing parties have complete control over the entire process. The procedure is informal, fast, efficient and low cost, which is especially favourable in light of the current economic crisis.
This item is based on an article in the IP newsletter of PETOSEVIC.
Posted by: Jeremy Phillips @ 15.10
Tags: Romania, mediation, |
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FRIDAY, 12 MARCH 2010
Trade marks and taxes in Poland
A taxpayer being also an entrepreneur has requested the Director of the Tax Chamber in Warsaw to issue an interpretation to a question whether by contributing a trade mark to a general partnership (ordinary partnership), he would receive a revenue that is subject to personal tax income. The right of protection for a trademark was granted by the Polish Patent Office. The taxpayer received revenue from licensing the use of that trade mark. However, he decided to form a general partnership, to which he wanted to make a contribution in a trade mark, based on its market value. The partnership would treat such trade mark as a legal and intangible asset and would make it available to other entities under a license agreement. The entrepreneur was also considering the possibility to sale his right of protection for the trade mark to another entity if the general partnership would not count it as the intangible asset.
He argued that making a contribution to a partnership, such as general or ordinary one (these are not having a status of a legal person), is not a source of revenue in personal income tax. His opinion was based on provisions of the Polish Act on Personal Income Tax which says that revenues from financial capital shall be par value of shares (stocks) of an incorporated company or shares of a cooperative received in exchange for a non-financial contribution.
The Director of the Tax Chamber in Warsaw in the interpretation of 25 June 2009, no. IPPB1/415-288/09-2/AG, concluded that the contribution of a trade mark to a general partnership is considered as a sale. The value of a trade mark that was established in the partnership contract serves as a basis to set the revenue from financial capital. Therefore, it is a revenue from commercial activity of a contributing person. The Director of the Tax Chamber referred to the Commercial Companies Code, under which the general partnership is a partnership, which may on its own behalf acquire the rights, including real property and other property rights, to incur obligations, may sue and to be sued – it has legal capacity but not the legal personality (a private company not an incorporated one). A non-financial contribution causes a transfer the ownership of things or rights to a general partnership because the capital share of the partner shall equal the value of the contribution effectively made. From the viewpoint of the civil law regulations, it is a payable sale of things or rights. Because the general partnership has no legal personality separate from its partners, therefore is not subject to personal tax income. Only partners are subject to personal tax income in such case.
Posted by: Tomasz Rychlicki @ 15.04
Tags: Poland, tax law, value of trade mark, Tax Chamber, personal income tax, legal entity, general partnership, Polish law, |
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THURSDAY, 11 MARCH 2010
DG Trade organises meeting on ACTA
 From OHIM, we learn that DG Trade is
organising a meeting in Brussels on 22 March to inform and consult
interested parties about the negotiation of the Anti-Counterfeiting
Trade Agreement (ACTA). According to the press release, "The goal of ACTA is to provide an improved framework for
countries committed to intellectual property protection, with a view to
effectively address the challenges of IPR infringement. The event,
which requires pre-registration, takes place in the Charlemagne
Building from 10.00am to 12.30pm." As ACTA has attracted criticism for secrecy and lack of transparency in the progress of negotiations (see IPKat's post here), this meeting might just be a pleasant surprise.
Posted by: Nikos Prentoulis @ 16.31
Tags: DG Trade, ACTA, |
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