The whole matter began in 2014 when Fresenius filed a request with the Patent Office of the Republic of Poland to invalidate the protection right for the trademark “Suportan,” which is registered in the name of Aflofarm. The disputed mark concerns, among other things, dietary supplements and dietary substances for medicinal purposes, as well as food for infants. The basis for the request was the very high similarity between the disputed trademark and the existing mark “Supportan,” which was not registered as a trademark. In relation to the compared trademark, the applicant stated in the justification that products bearing the “Supportan” mark have n known in Poland for almost the end of the 20th century, and therefore the registration of a similar mark is only intended to take advantage of the reputation of this mark. All these circumstances indicate that the rights holder undoubtedly had the opportunity to become familiar with this mark, and the registration of the trademark was carried out in bad faith. The request also referred to acts of unfair competition on the part of the rights-holding company. In response, the rights-holding company requested that the request for invalidation be dismissed. In a decision of 2015, the Patent Office of the Republic of Poland dismissed the request for invalidation of the disputed trademark. In the justification, it was stated that the cited mark “Supportan” does not have the characteristics that would allow it to be considered a work within the meaning of copyright law, and specifically, it does not have individual character or originality. As a result, this single word can be associated in different ways by recipients. Moreover, at the time of filing the request, the applicant did not have any right or other title authorizing it to use the “Supportan” mark. Furthermore, such a right cannot be derived from the use of the disputed name in commercial transactions. The applicant did not agree with this decision and appealed it to the Voivodeship Administrative Court. Unfortunately, the ruling in the administrative court proceedings before the court of first instance was also unfavorable to the applicant. As a result, as a result of a cassation appeal, the case was referred to the Supreme Administrative Court.
In assessing the case, the NSA indicated that “the mere use by the applicant in commerce of the unregistered mark ‘Supportan’ as a name for goods did not create any subjective rights of a personal or property nature for the applicant, the infringement of which would preclude the grant of protection for the disputed trademark (…). Also, the mere possibility for the applicant, invoking priority in the use of the mark ‘Supportan’ in commerce, to demand, on the basis of the Act on Combating Unfair Competition, that the authorized party refrain from using the disputed trademark, does not constitute a ground for the invalidation of the right (…). Furthermore, the court pointed out that the mark ‘Supportan’ does not constitute a work within the meaning of copyright law, as it does not meet the requirements of individual character and originality, and consequently, it cannot be attributed the characteristic of creativity. Finally, the NSA stated that the applicant did not prove in any way that the registration of the disputed trademark was done in bad faith.
Taking into account the above circumstances, the Supreme Administrative Court, in its judgment of May 26, 2021 (case file no. II GSK 1022/18), dismissed the applicant’s appeal.
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