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TUESDAY, 4 JANUARY 2011
Poland: cold case
Unilever N.V., the owner of SOLERO IR-0622723 and word-figurative SOLERO IR-0628636 trade marks requested the Polish Patent Office to invalidate the right of protection for SOLEY R-129356 trade mark owned by Maria Ziębińska, Stanisław Ziębiński "ICE MASTRY" sp. j. from Czaniec. Unilever claimed that the questioned sign is similar to its earlier registered well-known trade marks and that the Polish company acted in bad faith while applying for the right of protection because in 1997-2001, Unilever and ICE MASTRY were involved in two civil suits (case files V GC 252/97 and V GC 217/98) that have ended in a settlement in which the Polish company commited to discontinue the use of the signs SOLER, Soller and SOLLEI. The PPO invalidated the right of protection. ICE MASTRY filed a complaint against this decision.
The Voivodeship Administrative Court in Warsaw in its judgment of 4 October 2010 case file VI SA/Wa 785/10 held that the date of application for registration under Article 11 of the old Polish Trade Mark Act (these provisions still apply in cases where a trade mark has been applied for registration during the old Act was in force) determines the priority of the right of protection associated with the applied sign (prior tempore potior jure). Thus, by this date all subjective and objective issues related to the right applied for protection must also be assessed, in particular,and whether the applicant has the right to the sign.
The Court also noted that the TMA, as well as the Industrial Property Law does not include a provision that would regulate differently the question of the trade mark application, in relation to its subjective and objective elements and that would take into account as authoritative another, later, point in time. Moreover,the adoption at of a later date to assess the qualifications of the applicant, not only would provide an option for revalidation of trade mark applications that were filed in contradiction with the law, or principles of social coexistence (in bad faith), but may also violate other laws. The filing date of an application for the registration of a trade mark should be taken into account when assessing whether the applicant has acted in bad faith, not the date of trade mark registration. The judgment is not final yet.
Posted by: Tomasz Rychlicki @ 13.26
Voivodeship Administrative Court, bad faith, similarity of signs, trade mark invalidation,
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