The Polish Patent Office refused to grant the protection of international registration to the trade mark Premium De-Luxe Nemiroff for alcoholic drinks, in particular vodka. The refusal was issued due to similarity to an earlier series of trade marks, Premium, owned by a well-known Polish spirits producer and destined to denominate vodka.
The applicant was of the opinion that the word "premium" was frequently used to indicate premium class and quality in terms of describing alcohol drinks. According to the applicant, the word is not distinctive and consumers choosing "premium" quality drinks base their choice on the producer's name and that the reasonably well-informed, observant and circumspect average consumer is aware of its meaning in this respect.
The Polish Patent Office and District Administrative Court in Warsaw rejected this viewpoint but the Supreme Administrative Court in its ruling of March 23 2010 (Syg. II GSK 496/09) accepted it, ruling that the word "premium" is commonly used in the alcoholic drinks market and serves the role of underlying the high quality of such drinks. The court highlighted this as the key aspect of this case and observed that the word "premium" when used alone does not identify the specific producer; accordingly this word is not sufficient in the realm of trade mark distinctiveness. In the eyes of the court the word "premium" serves an informative role only and this role is aimed at underlying the exceptional quality of the given alcoholic drink. The crucial issue is the strength of influence of the entire trade mark on the consumer of the goods covered by this trade mark. Simultaneously the court set the rule that the strength of influence and the distinctiveness degree of the contested trade mark cannot be regarded as irrelevant – the weak trade mark must often tolerate the coexistence of similar trade marks.
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| Adrianna Ziecik |
Patpol
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