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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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Anthonia Ghalamkarizadeh
Birgit Clark
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Christian Tenkhoff
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Tomasz Rychlicki
Yvonne Onomor
MONDAY, 30 APRIL 2012
Poland: torts and trade marks
The Polish Patent Office partially refused to grant the right of protection for the word-figurative trade mark moja historia Z-338905. This sign was applied for by PHOENIX PRESS Sp. z o.o. Sp.k. from Wrocław for goods and services in Classes 09, 16, 35, 39, 41 and 42. The PPO based its refusal on Classes 09, 16 and 41 in respect of the earlier registration of the word-figurative trade mark Moja historia R-187793 owned by WYDAWNICTWO ERA Sp. z o.o. from Straszyn. PHOENIX agreed that both companies were publishers, but maintained that the signs were meant for different goods and were directed to other recipients. Phoenix was a press publisher whose clients were adult women while WYDAWNICTWO ERA published school history textbooks (mainly the history of Poland), their customers being students in primary schools.

The PPO decided that there existed similarity of signs and goods and services which might lead to consumer confiusion. PHOENIX filed a complaint against this decision. The Company argued inter alia that the PPO could grant the right of protection and it would not deprive WYDAWNICTWO ERA of protection provided for instance in the Polish Act on Combating of unfair competition, if PHOENIX's trade mark were actually to threaten the existence and functions of the trade mark owned by ERA.

The Voivodeship Administrative Court in Warsaw in its judgment of 8 June 2011 case file VI SA/Wa 611/11 dismissed the complaint. The Court ruled that regulations on combating unfair competition are provided in a separate Act, and it is justified by both the construction of the Polish legal system and due to the method of regulation. The law on combating unfair competition does not create absolute rights, but only the system of legal claims that provides protection in the event of unwanted and objectionable market behavior and actions (unfair competition delicts or torts), which is a different approach than those adopted in the Polish Industrial Property Law, which are based on the granting of absolute rights (monopolies) by an administrative decision.
Posted by: Tomasz Rychlicki @ 11.53
Tags: likelihood of confusion, Polish Act on Industrial Property Law, press title, similarity of goods, similarity of signs, trade mark refusal, trademark law, Voivodeship Administrative Court, unfair competition law,
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