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TUESDAY, 17 MARCH 2009
Poland: METALCHEM versus METAL-CHEM
On 24 September 2001, the Polish company Zaklad Urzadzen Metalowych "METAL-CHEM" Sp. j. A. Pochec, L. Szymanski, M. Aplas from Rudki applied to register the word-figurative trade mark METAL-CHEM in class 6 for goods such as steel, in class 7 for goods such as machinery and equipment for special treatment, technological lines for waste treatment as well as the teams line and accessories, machinery and equipment for the production of cobblestones, bricks and masonry, welders for pipes, in class 11 for electric heaters and in class 40 for production of special machines, mechanical and thermal processing, casting of non-ferrous metal. On 28 February 2005, the PPO issued a positive decision and registered this trade mark (R-162449).
Another Polish company, Instytut Inzynierii Materialˇw Polimerowych i Barwnikˇw (the Institute for Engineering of Polymer Materials and Dies), from Torun filed a request to invalidate the right of protection. The request was based on the following articles of the Polish Act of 30 June 2000 on Industrial Property Law (ustawa Prawo wlasnosci przemyslowej z dnia 30 czerwca 2000 r.) published in Dziennik Ustaw 2001 No 49, pos. 508, consolidated text on 13 June 2003, Dziennik Ustaw No 119, pos. 1117, with later changes.
Rights of protection shall not be granted for signs which:article 131(1)(i)
(ii) are devoid of sufficient distinctive character.
Rights of protection shall not be granted for signs:and articles 132(2)(i) and (iii),
(i) whose use infringes third parties’ personal or economic rights,
A right of protection for a trade mark shall not be granted, if the trade mark:The company from Torun presented its trade mark METALCHEM (R-51184) registered with an earlier priority on 12 April 1973 (it was applied for on 15 May 1972) in class 6, 7, 9, 20 for goods such as worm pumps, pumps, vertical and horizontal rotational pumps for aggressive liquids, valves, clamps, agitators, mixers, pressure-type apparatus made of stainless steel and carbon steel, containers for transporting granular substances, containers and tanks of plastics.
(i) is identical to a trade mark registered or applied for registration with an earlier priority date (provided that the latter is subsequently registered) on behalf of another party for identical goods,
(iii) is identical or similar to a renowned trade mark registered or applied for registration with an earlier priority (provided that the latter is subsequently registered) on behalf of another party for any kind of goods, if it without due cause would bring unfair advantage to the applicant or be detrimental to the distinctive character or the repute of the earlier trade mark. The above provision shall apply to well-known trade marks accordingly.
The PPO has invalidated METAL-CHEM trade mark in its decision of 29 January 2009, act signature Sp. 424/06. The Adjudicative Board of the PPO has taken into account only arguments based on article 132(2)(ii) of the IPL. The board acknowledged that METALCHEM trade mark has distinctive character and is successfully used at the market. As regards arguments based on article 132(2)(i) the Board held that both signs are identical, the separate spelling is not a significant argument and the goods are similar and complementary. The reputation has not been proven by the company from Torun so the motion based on article 132(2)(iii) of the IPL was rejected. The decision is not final.
Posted by: Tomasz Rychlicki @ 13.19
Polish Patent Office, Polish trade marks,
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