The Polish Patent Office in its recent decision of 12 September 2008 (act signature Sp. 220/08) applied the interpretation issued by the Polish Supreme Administrative Court in judgment of 23 April 2008, act signature II GPS 1/08. Class 46 reported this case.

The PPO had to decide a motion to declare the expiration of TORNADO trade mark (R-65213) registered for Reckitt Benkiser N.V. The motion was filed by Henkel KgaA which applied for word trade mark TORNADO (Z-339055) on 2 April 2008. The disputed trade mark was applied for on 11 April 1989 in class 3 and the right of protection was granted by the Polish Patent Office on 30 October 1990. However, during the proceedings started by Henkel, the holder did not defend his rights, he did not provide any evidence that the mark was ever used in Poland. The PPO set the expiry date of protection rights of the disputed mark on the date of 31 October 1995. The period of 5 years of non-use of a trade mark was set from the day following the date of registration of that mark.

For some trade mark lawyers, the PPO's decision may be a little bit confusing if one will take into consideration article 169(1)(i) of the Polish Act of 30 June 2000 on Industrial Property Law (ustawa Prawo wlasnosci przemyslowej z dnia 30 czerwca 2000 r.) published in Dziennik Ustaw 2001 No 49, pos. 508, consolidated text on 13 June 2003, Dziennik Ustaw No 119, pos. 1117, with later changes.

1. The right of protection for a trademark shall also lapse:
(i) on failure to put to genuine use of the registered trademark for the goods covered by the registration for a period of five successive years after a decision on the grant of a right of protection has been taken, unless serious reasons of non-use thereof exist