Probably every Polish person knows the songs KOMBI  band – not only those who were brought up in their heyday (70s-80s of XX c.). Few, however, realize that there are currently two bands on the Polish music scene: Kombi and Kombii. They sing the same songs and use a similar name. Furthermore, they fight the court battle for the exclusive right to use it.

(Judgement of the Court dated 7^th September 2022, Case T-730/21)

Everything started in 1992 when the band created by Sławomir Łosowski (with Grzegorz Skawiński as a singer) split up. Łosowski suspended his music career for a couple of years. Later he started it again under the previous name Kombi. Skawiński created his own band – Kombii (with double „i”).

A dispute over the right to use the group name arose between former colleagues. In 2014 Łosowski applied for registration of „Kombi” EU trademark (written with one „i” – EUTM 012534491). In 2016, Skawiński filed an application for declaration of invalidity of that trademark. In his application, he relied on his earlier trademark „Kombii” (with doubled „i” – EUTM 009788514), applied for registration in 2011. Skawiński claimed that the trademark written with one „i” can lead to confusion. The EUIPO shared Skawiński’s opinion and declared the „Kombi” trademark EUTM 012534491 invalid.

Łosowski appealed against the EUIPO decision, claiming that he was entitled to the name of the band. EUIPO did not agree with Łosowski, so he appealed to the Court. In his opinion, the personal interest to the name of the group belongs to him and not to Skawiński. Łosowski also believes that the KOMBI (later) and KOMBII (earlier) trademarks can exist simultaneously in trade, because the name Kombi is clearly associated with him and there cannot be any confusion.

In the discussed judgment, the Court did not approve of Łosowski’s arguments. The Court found that the similarity between the trademarks will mislead consumers. It also stated that Łosowski had not presented any evidence (in particular a decision of the Polish court) that he had the rights to the name of the band independent to trademark rights. In the justification, the Court indicated that „only the Polish court is authorized to adjudicate about the existence of the exclusive right invoked by the applicant” [own translation from Polish]. Łosowski did not present any such judgment.

The case discussed above is not the only case in which Łosowski and Skawiński argued over the band name. The trademark „Kombii” (with two „i” – EUTM 009788514), mentioned by Skawiński in the above-described case, was registered by EUIPO in 2012. In 2017, Łosowski filed an application for declaration of invalidity of Skawiński’s „Kombii” trademark claiming that he had an exlusive  right to the band’s name and that he had previously used the unregistered „Kombi” trademark. EUIPO in the first and second instances did not agree with Łosowski’s arguments. In the opinion of the Office, Łosowski failed to prove that the conditions for invalidating Skawiński’s mark (by two „i”) on the basis of earlier use of the mark by one „i” were met. Neither had he proved that he is the only person entitled to the band’s name. By the decision of the Fifth Board of Appeal of EUIPO of May 30, 2021, file ref. R 1349/2020‑5, Łosowski eventually lost the case.

Comment:

In jurisprudence of Polish courts it is accepted that a name of a musical group is the personal right of all its members, because all of the members work for the band.

There are two exceptions if the issue is not resolved in a contract:

– when a name is associated with a surname of one of the members or;

– the band is perceived by audience as owned by one of the members because it was created, named and managed by one of its members in such a clear and obvious way that in the public consciousness the team is considered to be that person’s bands.

(Judgements: of the Supreme Court of 30 May 1988, Case I CR 124/88; of the Appeal Court in Warsaw of 26 March 2018, Case VI ACa 1664/17; of the Appeal Court in Warsaw of 30 April 2014, Case VI ACa 1304/13)

In Polish law, it is possible to bring an action to establish an existence or non-existence of a legal relationship, including who is entitled to an exclusive right. Such a judgment would be taken into account by the EUIPO and the CJEU. It seems from the said judgement Łosowski failed to obtain a relevant judgement of a Polish civil court.

This is not a first dispute over the name of the band in Poland. Certainly it would not be the case if the members regulated the use of the name by contract at the beginning of their activity or  later. Otherwise, they either have to accept the coexistence of similar names or engage in prolonged disputes.

For those interested, the same song from the former KOMBI repertoire performed by the arguing bands: