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Poland: Glazide differs from gliclazidium

The Polish newspaper Rzeczpospolita reports a recent judgment of the District Administrative Court in Warsaw, act signature VI SA/Wa 1000/08. On 29 September 2001, Farmaceutyczna Spˇldzielnia Prac Galena from Wroclaw applied for trade mark registration for the word Glazide in class 5 for goods such as anti-diabetic pharmaceutical preparations. The Polish Patent Office registered this sign (R-161144) in the decision of 4 February 2005.

Les Laboratoires Servier from France filed a request for invalidation of the right of protection based on article 129(1)(ii) 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. Rights of protection shall not be granted for signs which:
(ii) are devoid of sufficient distinctive character.
and 129(2)(ii):
(ii) signs which consist exclusively or mainly of elements which may serve, in trade, to designate the kind, origin, quality, quantity, value, intended purpose, manufacturing process, composition, function or usefulness of the goods,
The French company claimed that the mark Glazide could not distinguish the goods for which it was registered. The mark itself presents information about the treatment of diabetes. The active ingredient (AI) in these kinds of medicine is the substance called gliclazidium (gliclazide). However, the PPO dismissed the request and the French company lodged a complaint before the District Administrative Court in Warsaw. That court held that the disputed mark may lead its recipients (doctors, pharmacists) to make some association with the AI, but it does not mean that it lacks the distinctive character. The sign differs from the AI in phonetic and visual aspects. According to the Court, the Glazide trade mark is fanciful and does not describe a type of drug. The DAC ruled that article 129(2)(ii) clearly states that only signs that are made exclusively of the elements that describe the nature or origin of goods lack distinctive character.

The judgment is not yet final. The cassation complaint may be filed before the Supreme Administrative Court.

Posted by: Tomasz Rychlicki @ 14.53
Tags: medicines, Poland, Polish courts, Polish law, Polish Patent Office, threshold for similarity,
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