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Poland: 600 or can a number serve as a trade mark?

On 19 May 2008 the Polish Patent Office invalidated 600 R-164282 trade mark owned by Agencja Wydawnicza "TECHNOPOL" Spˇlka z o.o. from Czestochowa (act signature Sp. 428/06). This trade mark was registered in class 16 for goods such as brochures, periodicals, periodicals-the titles of periodicals with crosswords, books with crosswords. The request for invalidation of the right of protection was filed by Bauer Sp. z o.o. from Warsaw. Bauer company is a publishing house and part of Bauer Media Group holding. Bauer based its request on article 129(1)(ii) 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 amendments.

1. Rights of protection shall not be granted for signs which:
(ii) are devoid of sufficient distinctive character.
article 129(2)(i) and (ii)
2. Subject to Article 130, the following shall be 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,
and 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,
Bauer argued before the PPO that 600 has no individual character and only decribes contents of the goods indicating approximate number of included crosswords. 600 is a sign composed of Arabic numerals which is devoid of any fanciful elements. For that reason, the buyer of goods marked with disputed trade mark, in conditions of regular market turnover, will not be able to identify the orgin of these goods as coming from specific entity. Different publishers introduce to the market different publications that include descriptions of their content written on covers for exmaple "222 crosswords". Bauer also cited article 7(1)(c) of the Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community Trade Mark and Advocate General Jacobs opinion of 11 March 2004 in case C-329/02 P regarding the interpretation of the refusal of trade mark registration in the light of the public interest. Bauer argued that Technopol has tried to monopolise the number 600 in order to eliminate present and potential market competitors and to keep its dominant position, for that reason Technopol's registration was done in bad faith.

The PPO sided with Bauer's arguments that 600 sign cannot belong only to one entrepreneur because it would lead to "disturbances" in the market. The PPO supported its findings on the Supreme Court judgment of 10 December 1996, act signature III RN 50/96 in which the Court held that while assessing whether the sign has the distinguishing character one should take into the account the economic interests of all market participants, which is characterized by free access to all signs that inform about name or characteristics of goods or services. The PPO also agreed with the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 7 August 2006 in case No R 447/2006-4 in case of CTM application No 4 372 264 for word mark "1000" for goods and services in classes 16, 28 and 41.

Technopol filed a complaint to the The District Administrative Court in Warsaw. The DAC in its judgment of 17 February 2009, act signature VI SA/Wa 2124/08 agreed with PPO's findings and rejected the complaint. The Court acknowleged that the Polish Patent Office properly assessed all evidences and materials of the case and correctly held that granting the right of protection to 600 sign that is devoid any fanciful elements to only one entrepreneur would lead to disturbances in the market. The Court also held that 600 sign could not acquired secondary meaning because according to the case-law of the Court of Justice and Polish case-law it is impossible to acquire secondary meaning for a sign that has merely descriptive or information character.

This judgment is not yet final. The parties may file a cassation complaint to the Supreme Administrative Court.

Posted by: Tomasz Rychlicki @ 15.31
Tags: distinctiveness, Polish courts, Polish Patent Office,
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