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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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TUESDAY, 14 OCTOBER 2008
Poland: winner not in bad faith


The Polish newspaper Rzeczpospolita reports recent judgment of the Polish Supreme Administrative Court (act signature I GSK 332/08).

On December 1999, Polish company Top Choice Agata Murawska has applied for trade mark registration for word mark WINNER and word-figurative sign W WINNER in classes 21 (combs, hair brushes and other products) and 29 (rollers). In 2003, The Polish Patent Office granted the right for protection respectively R-148543 and R-148540.

Inter Vion SA from Warszawa decided to invalidate aforementioned registrations claiming that those trade marks are the company name (the firm) of Tong-Fong Brush Factory Co. Ltd., from Taiwan which is one of the biggest producers of brushes, combs and mirrors (60 milions of pieces produced in 2000). The WINNER sign, although not registered, was used by Taiwanese company since 1997 on the Polish market. The Company from Taiwan presented an offer involving a series WINNER products to several of Polish companies, including Inter Vion and Top Choice. Since 1998 Top Choise has imported the above-mentioned accessories bearing WINNER trade mark, first by intermediaries, and since 2000 directly from the Taiwanese company. InterVion has signed its first importation contract for WINNER products in 1999. The company has presented first images of these goods in its directory of 1999/2000. During invalidation proceedings before the Polish Patent Office InterVion has alleged that Top Choice, by registering the disputed marks, tried to gain a monopoly on the importation of products.

The PPO invalidated WINNER and W WINNER trade marks in its decision of 4 October 2006, act signatures Sp. 119/05 and Sp. 46/06. The District Administrative Court in Warsaw has dismissed Top Choice's appeal complaints in its judgments of 27 August 2007, act signatures VI SA/Wa 114/07 and 115/07.

Top Choice filed a cassation complaint before the Supreme Administrative Court claiming that DAC erred in its findings and violated the administrative procedure rules. SAC rejected the cassation and based its arguments on procedural errors included in Top Choice's complaint which in court's opinion lacked proper claims' construction. However, SAC also held that company who registered other company's name as a trade mark acted in bad faith which was a sufficient circumstance to declare invalidation of such trade mark by the PPO.

Posted by: Tomasz Rychlicki @ 15.27
Tags: Bad faith, Poland, Polish Supreme Administrative Court,
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