'Rectified spirit' held to be descriptive of vodka

The Polish Supreme Administrative Court has held that SPIRYTUS REKTYFIKOWANY (Polish for 'rectified spirit') was not a fanciful mark, but merely a descriptive term informing the public of the production process of the goods (Case II GSK 185/08, June 18 2008).

 

This case highlights the problems faced by Polish companies that were privatized after 1990 with regard to the management of their IP portfolios. Polmos was a state-owned company which held a monopoly on the Polish market for spirits and other alcoholic beverages from the mid-1920s. In 1990 it was privatized and divided into several independent companies, including Przedsiebiorstwo Przemyslu Spirytusowego Polmos w Warszawa SA (Polmos Warszawa) and Polmos Lancut SA. Polmos Warszawa bought the mark SPIRYTUS REKTYFIKOWANY during an auction held by the Polish Ministry of the Treasury. In 1999 all companies of the Polmos group agreed not to use trademarks owned by other companies within the group.

 

Polmos Lancut subsequently applied for the registration of the trademark SPIRYTUS REKTYFIKOWANY PL 1784 (Registration 134685). Polmos Warszawa opposed the application based on its earlier registered trademark SPIRYTUS REKTYFIKOWANY (Registration 63628). The Polish Patent Office held that the trademark SPIRYTUS REKTYFIKOWANY had no distinctive character, as it referred to a specific type of alcohol and method of production. Polmos Warszawa lodged a complaint before the Warsaw District Administrative Court seeking the annulment of the office's decision. The court agreed with the office's findings and rejected the complaint.

 

Polmos Warszawa filed a cassation complaint before the Warsaw Supreme Administrative Court, arguing that SPIRYTUS REKTYFIKOWANY had acquired a secondary meaning through use during the course of trade. The court held that Polmos Warszawa could not claim exclusive rights over the SPIRYTUS REKTYFIKOWANY mark, as 'rectified spirit' was a purely informative term which could be found in dictionaries and was standard terminology in the trade. The court thus dismissed the complaint.

 

Tomasz Rychlicki, Patpol - Patent & Trademark Attorneys, Warsaw