A product with TRADITIONAL trademark must be traditional itself

Producers of food products eagerly use on the labels of their products verbal and figurative marks referring to the culinary tradition, rusticness, homeliness, or the home cooking of our grandmothers and mothers. Trade marks referring to the origin of the products or their properties may be forced to combat decision to refuse to grant the right due to the descriptive nature of the sign. On our blog, we have written about descriptiveness more than once already, which is why our attention will focus on another premise for refusing protection of a trademark, known as the misleading character of the mark.

WHAT DOES IT MEAN THAT A TRADEMARK IS MISLEADING?

When establishing the existence of this condition, it is necessary to refer to the list of goods and services covered by the application. The mark is never misleading by itself, but only in relation to the specific goods and services for which it is intended to be used. It follows that a misleading is a mark  that contains false information about a specific product. Confusing is for example when a label of a product indicates a generic name of a  a certain product when it is filed fot protection for completely different products. The example of such a situation was the judgment of the Provincial Administrative Court in Warsaw of 2 December 2021, VI SA/Wa 2115/21 on the combined mark “HELLENA ORANŻADA”, which was filed for alcoholic beverages.

Art. 129 (1) 1. 12 of the Industrial Property Law Act defines a misleading trademark as one which by its nature may mislead recipients, in particular as to the nature, quality or geographical origin of the goods.

 WHAT IS MISLEADING IN TRADITIONAL CUISINE?

In the judgment of February 22, 2022 (II GSK 1674/18), the Supreme Administrative Court considered the possibility of granting the right to the trademark “Kuchnia STAROPOLSKA” applied for the Hungarian dish – letcho. The NSA pointed out that the reference to traditional, old Polish cuisine on the label of the product, which in fact comes from Hungarian, not Polish cuisine is misleading. Moreover, as emphasized by the Supreme Administrative Court, this product cannot be considered “old Polish”, which is clearly associated with natural and home-made products without artificial additives, as the applicant’s product was supposed to be enriched with the form of modified E1422 starch.

WHY IS IT SO IMPORTANT?

The purpose of the trademark is to enable the consumer to purchase a product without having to remember the names of producers of individual goods, but only on the basis of the trademark appearing on the label or packaging of the product. It is therefore important that the label is remembered by the recipient, so that the consumer can repeat a positive purchase or avoid a disappointing product. However, it is also important that the consumer is able to make a rational and non-manipulated purchasing decision, and this can only be guaranteed if the manufacturer’s assurances as to the properties and type of the product are consistent with the actual characteristics of the product. The jurisprudence has concluded that names referring to traditional and natural methods of producing a product affect the trust and purchasing decisions of consumers.