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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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Tomasz Rychlicki
Yvonne Onomor
WEDNESDAY, 13 NOVEMBER 2013
Poland: the Grüne Punkt's trade marks saga continues
On 4 March 2008, the Polish Patent Office registered the figurative trade mark R-202501 and word-figurative trade mark DER GRÜNE PUNKT R-202502 for goods and services from Class 01 to Class 45. Both signs were applied for the German company Der Grüne Punkt-Duales System Deutschland GmbH in 2006. The Polish company Biosystem Elektrorecykling S.A. from Kraków opposed both registrations.

In July 2010, the PPO has already decided on the lapse of the International registrations of the figurative trade mark IR-653450, as of 1 July 2003, and the figurative trade mark IR-585713, as of 1 March 2002. The PPO followed arguments of Biosystem Elektrorecykling S.A. that argued that both questioned trade marks were very popular on different markets, especially European one, and such popularity, many granted licenses and presence of these signs on almost 91% of packing, lead to a conclusion that they are not used as trade mark in their basic functions. Der Grüne Punkt-Duales System filed complaints against these decisions, but the Voivodeship Administrative Court in its judgments of 9 March 2011 case files VI SA/Wa 2169/10 and VI SA/Wa 2171/10 agreed with the PPO and dismissed them. The Supreme Administrative Court in its judgments of 21 November 2012 case files II GSK 1551/11 and II GSK 1646/11 dismissed cassation complaints. See "The saga of Der Grüne Punkt's trade marks". The PPO in its decisions of 11 October 2013 decided on the lapse of two other trade marks owned by Der Grüne Punkt-Duales System Deutschland GmbH. In the case of the figurative trade mark IR-653449 the PPO decided that it has lapsed on 1 July 2003 and the word-figurative trade mark IR-585714 has lapsed as of 1 March 2002.

Biosystem Elektrorecykling S.A. argued that trade mark R-202501 and R-202502 were applied in bad faith, because earlier identical sign were subject to proceedings in which the PPO and the Courts ruled on the lapse of the right of protection due to non-use. The Company argued that Der Grüne Punkt-Duales System Deutschland GmbH applied for old-new sings in order to block its competitors in the recycling market, therefore newly registered trade mark would undermine the institution of the lapse of the right of protection, because anyone interested in use of such mark would have to wait five years in order to again request the PPO to decided on the lapse.

The Adjudicative Board of the Polish Patent Office in its decisions of 29 October 2013 case nos. Sp. 42/11 and Sp. 46/11 invalidated both trade marks. These decisions are not final, and may be challenged before the Voivodeship Administrative Court in Warsaw.
Posted by: Tomasz Rychlicki @ 15.42
Tags: genuine use, legal interest, trade mark lapse, trade mark use, Voivodeship Administrative Court, Supreme Administrative Court,
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