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Poland: the average consumers' confusion
The Polish company AFLOFARM Fabryka Leków Sp. z o.o. applied for the word-figurative trade mark "tabletki na uspokojenie Aflofarm" (in English: Aflofarm tablets for calming down) Z-298475 for goods in classes 03, 05 and 44. The Polish Patent Office refused to grant the right of protection in part of the goods in class 5 covering dietetic substances for medical use, food for babies. The PPO held that the right of protection shall not be granted for a sign that misleads the public as to the nature and properties of the good. Such misleading information is a sign that may cause false image of the average buyer as to the nature of the product, its quality or properties. The assesment of content of a signs is made by him or her from the perspective of the average consumer. The interest of the buyers requires the assumption that the sign is misleading, once a small group of consumers may be misled as to the characteristics of the goods or services, since these characteristics may affect the decision taken, in relation to those goods or services. Under such assumption, the assessment cannot be affected by anything outside the relationship sign - the goods with the reasonable buyer's idea on such relationship. It follows that the sign "tabletki na uspokojenie Aflofarm" on the goods listed in class 5 should be considered as misleading the buyers as to the nature, purpose, or functional characteristics of these goods.

AFLOFARM argued, that it's not true that the buyer/consumer "is left alone" with a sign and a product bearing the questioned trade mark. These products are only available in pharmacies and are issued only by a professional that is a pharmacist. Thus it excludes the confusion of the average consumer as to whether he or she has bought the wrong product.

The Voivodeship Administrative Court in Warsaw in its judgment of 18 March 2010 case file VI SA/Wa 2127/09 agreed with AFLOFARM's arguments and reversed the contested decision. The Court also noticed that "tabletki na uspokojenie Aflofarm" trade mark was applied for dietary agents/means for medical use, rather than dietary substances for medical purposes. For this reason, the Court held that the goods that are marked with a "tabletki na uspokojenie Aflofarm" trade mark will not cause consumers' confusion since products of such indications or effectiveness can be classified differently, depending on their registration or application.
Posted by: Tomasz Rychlicki @ 13.20
Tags: Polish Administrative Proceedings Code, Voivodeship Administrative Court, absolute grounds for refusal, product packaging, trade mark refusal, consumer confusion, average consumer,
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