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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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FRIDAY, 3 APRIL 2009
Poland: ASPIRIN v PLUSPIRYNA

ASPIRINOn 4 November 2005, the Polish company Zaklady Farmaceutyczne Polpharma S.A. from Starogard Gdanski applied to register the word trade mark PLUSPIRYNA in class 5 for pharmaceuticals products. On 21 July 2006 the PPO issued a positive decision and registered this trade mark (R-175822).

The German company Bayer Aktiengesellschaft from Leverkusen 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 - IPL - (in Polish: ustawa Prawo wlasnosci przemyslowej) 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 changes.
Article 131(2)(i):

2. A right of protection shall not be granted for a sign, if:
(i) it has been applied for protection with the Patent Office in bad faith,
Article 132(2)(ii) and (iii):
2. A right of protection for a trade mark shall not be granted, if the trade mark is:
(ii) a trade mark which, before the date according to which priority to obtain a right of protection is determined, has been well-known and used as a trade mark in respect of the goods of another party,
(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.
Bayer presented its earlier rights of protection for ASPIRIN trade mark (R-41042), which was applied for in the Republic of Poland on 20 June 1958, in class 5 for pharmaceutical preparations. Bayer alleged that Polpharma's mark was confusingly similar to ASPIRIN and that PLUSPIRYNA is build on the reputation of Bayer's trade mark. The disputed trade mark includes "pirin" component which in its overall assessment makes it similar to the ASPIRIN trade mark and it also weakens its reputation. Bayer has also registered other trade marks such as ASPIRIN-C (R-105171), ASPIRIN (R-105170) - applied for on 18 January 1994, these signs were registered on 8 September 1998 and ASPIRIN (R-94326) - registered on 26 February 1997, in class 5 for goods such as medicines, pharmaceutical preparations, chemical proudcts for health care.

Polpharmy argued that it has been registered a lot of trade marks including the "piryn" element. Although ASPIRIN trade mark has been applied to register in Poland in 1958, but for many years products bearing this sign were not available on the market in general, only in Pewex and Baltona shops - these two types of shops operated in the communist Poland selling otherwise unobtainable Western goods in exchange for Western currencies. Polpharma provided a whole series of trade marks that include "piryna" element - a well-known word mark POLPIRYNA (R-48888) protected since 1969, and available on the Polish market since 1955, word trade mark POLOPIRYNA C (R-55084) protected since 1976, the word trade mark CALCIPIRYNA (R-96016) protected since 1994 and the word trade mark Etopiryna (R-59876) protected since 1983.

The Polish Patent Office did not agree with Bayer's arguments and dismissed the invalidation request in its decision of 3 February 2009, act signature Sp. 564/07.

Posted by: Tomasz Rychlicki @ 10.03
Tags: Famous marks, Poland, Polish Patent Office, Polish trade marks,
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