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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
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Yvonne Onomor
Poland: rock for all

R-173752Today is the day the biggest orchestra on the world plays its show - Wielka Orkiestra Swiatecznej Pomocy - The Great Orchestra of Christmas Charity, so this is the reason this Class 46 team member decided to write music (rock) related post.

On 1 April 2003, the Polish company Scooter sp. z o.o. from Bytom applied to the Polish Patent Office for the word-figurative trade mark CITY ROCK (Z-262984) for goods and services in classes 9, 12, 21, 24, 25, 35, 36, 40, 41, 42, 43. After almost three years, the PPO granted the right for protection (R-173752) in its decision of 6 March 2006.
Hard Rock Holdings Limited (from the UK) filed a request for invalidation of the right of protection based on provisions included in article 131(2)(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:
2. A right of protection shall not be granted for a sign, if:
(i) it has been applied for protection with the Patent Office in bad faith,
and article 132(2)(ii):
2. A right of protection for a trade mark shall not be granted, if the trade mark:
(ii) is identical or similar to a trade mark for which a right of protection was granted or which has been applied for protection with an earlier priority date (provided that the latter is subsequently granted a right of protection) on behalf of another party for identical or similar goods, if a risk of misleading the public exists, in particular by evoking associations with the earlier mark,
The request for invalidation was limited by the UK company to goods in classes 9, 25, 41 and 43. Hard Rock Holdings provided earlier trade mark registrations HARD ROCK CAFE (R-97170), Hard Rock CAFE (R-126149), Hard Rock CAFE (R-140353). The company claimed that there existed visual, aural and conceptual similarity between the disputed signs which might lead to consumers to confusion. Hard Rock Holdings argued that HARD ROCK CAFE trade marks had a reputation and were used as a cult brand for restaurants in many countries. The president of the Polish company, acting without a professional representative, claimed that the signs were not similar.

The Polish Patent Office dismissed the request in its decision of 6 November 2008, act signature Sp. 451/07. According to the PPO, there was no risk of confusion between the trade marks. The PPO also stressed the fact that the word "rock" cannot be proprietarized by one entrepreneur because it indicates the genre of music. As regards the reputation, the PPO said that it is difficult to talk about HARD ROCK CAFE's reputation because it has been present in Poland since 2007 an,d for the time being, only in Warsaw, while the contested trade mark was applied for much earlier, in 2003.

Posted by: Tomasz Rychlicki @ 21.12
Tags: Famous marks, Poland, Polish Patent Office, Polish trade marks,
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