Kraft Foods Polska Spólka Akcyjna from Warsaw, the owner of the Prince Polo trade mark (R-148617) gave a reasoned notice of opposition to a final decision of the Patent Office on the grant of a a right of protection to the Marco Polo trade mark (R-174796) that was applied for by Zaklady Przemyslu Cukierniczego Mieszko SA for goods in class 30, mainly for pastry and confectionery.
Kraft Foods claimed that there is a risk of confusion between these trade marks, resulting from the similarity between the compared signs and the identity of the goods. Kraft also submitted evidence to prove the reputation of the Prince Polo mark. Mieszko argued that the signs are dissimilar because the graphic/figurative element of these marks is essential, and verbal elements are blurred or faint and even minor. Mieszko also found the arguments for Prince Polo's reputation to be very questionable, because even Kraft indicated that the goods for which its trade marks are registered marks are cheap and directed to the mass consumer.
The Polish Patent Office (PPO) in a decision of April 23 2009 acknowledged that the goods marked with both signs belong to the group of foods frequently and commonly purchased by consumers and that the materials used to produce these goods are similar or identical, and there are the same conditions of their production, storage and sale. These products are offered and sold in the same shops. These findings required the PPO to examine the similarity of the signs. The PPO ruled that the same element Polo does not determine the similarity between both signs, because the differences occurring in the conceptual aspect rule out the risk of consumer confusion as to the origin of goods. The PPO held that contrary to Kraft's arguments, Marco Polo's sign will primarily be associated by purchasers of goods with a famous explorer, because it is simply his name. However, the Prince Polo sign, regardless of how it can be translated into Polish, is not used to identify a specific person and it is not a proper name. Despite the recognition of Kraft's trade marks on the Polish market, the average consumer will associate Marco Polo in the first place with the person of a traveller rather than as Kraft claimed with its Prince Polo trade marks. Therefore, the PPO rejected the opposition. Kraft filed a complaint to the administrative court.
The District Administrative Court in Warsaw in a judgment of February 11 2010, case file VI SA/Wa 1988/09, agreed with the PPO's assessment of the similarity and ruled that since the signs are not similar then the discussion about using someone else's reputation is not justified. Dissimilar signs cannot cause association in the consumer's mind, so there can be no question of imitation, and conscious deriving of benefits from someone else's reputation.
This judgment is not yet final. An appeal may be filed to the Supreme Administrative Court.
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| Tomasz Rychlicki |
Patpol
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