Nowadays, in Polish case law, it’s well established that for a trademark to be considered reputable, it doesn’t need to reach a certain percentage of recognition among the relevant audience. However, in the past, it was otherwise, and case law often set approximate limits for this threshold. The lower limit was set at approximately 25% of the relevant audience, while over 50% recognition of the trademark was considered to be a direct indication of its reputation (e.g. Supreme Court judgment of 10 February 2011, IV CSK 393/10).

However, setting a specific threshold for the recognition of a reputable mark was contrary to the case law of the CJEU, from which it followed that the assessment of reputation was comprehensive and that all circumstances of the case should be taken into account, such as market share, intensity, geographical scope and duration of use of the mark, as well as the scale of investment in its promotion. The CJEU case law explicitly emphasised that it is not possible to establish in advance a universally applicable threshold of recognition above which a trademark should be considered reputable (see, inter alia, CJEU Judgment of 4 May 1999, C‑108/97 & C‑109/97, Chiemsee).

The recent judgment of the Supreme Administrative Court of 17 September 2025 in case II GSK 312/22 concerning the NIVEA trademark is consistent with the above position of the CJEU. At the same time, the judgment pointed out that in the case of trademarks with an established reputation, a lower degree of similarity to the later trademark is sufficient for a conflict to arise.

Conflict between the NIVEA and NIVELIUM trademarks

The case concerned an opposition to the registration of the word mark ‘NIVELIUM’ for cosmetic products in Class 3 of the Nice Classification (including soaps, cosmetics and deodorants), filed by the proprietor of the earlier, reputed ‘NIVEA’ trademarks. The Polish Patent Office upheld the opposition, indicating that the conditions of both Article 1321(1)(3) (likelihood of confusion) and Article 1321(1)(4) of the Industrial Property Law (reputation infringement) had been met. Subsequently, the Voivodship Administrative Court in Warsaw dismissed the appeal against the decision of the Polish Patent Office.

An appeal against the judgment of the Voivodship Administrative Court was filed by the company applying for the trademark ‘NIVELIUM’, which ultimately proved to be unfounded. The Supreme Administrative Court first pointed out that the relative grounds for refusal to grant protection are independent of each other and that the Polish Patent Office should indicate in its decision which one is applicable. In the present case, the Polish Patent Office examined both relative grounds for refusal. Taking into account the increased recognition of the NIVEA trademark, despite the low degree of similarity between the trademarks, it refused to grant protection to the NIVELIUM trademark due to the likelihood of confusion. At the same time, it concluded that it was not possible to grant protection due to the possible damage to the reputation of the trademark.

Regardless of the above, in the opinion of the Supreme Administrative Court, the similarity of the marks was correctly determined to be low. The similarity of the initial syllables ‘NI-VE’ in both marks was considered decisive, emphasising that in assessing the similarity of word marks, it is the initial elements (first letters and syllables) that are most important. At the same time, attention was drawn to the significantly different phonetic sound of the endings of both marks.

The judgment indicated that the reputation of the NIVEA mark had been correctly assessed. The Supreme Administrative Court emphasised that it was reasonable to adopt a quantitative definition of a reputable trademark. It thus shared the view that trademarks associated with goods or services that have a negative reputation in the eyes of the public may also be considered reputable. The Supreme Administrative Court also agreed with the CJEU that for a trademark to be considered reputable, it must have a certain level of recognition, but it is also important to take into account all relevant factual circumstances.

Ultimately, the Supreme Administrative Court considered the Polish Patent Office’s position to be correct, namely that the use of the ‘NIVELIUM’ mark without a legitimate reason could bring the applicant an undue advantage or be detrimental to the distinctive character of the ‘NIVEA’ mark. It pointed out that products bearing the disputed mark are distributed in a similar manner to products bearing the NIVEA trademark. At the same time, it emphasised that this infringement, referred to as ‘dilution’ or ‘weakening’ of the trademark, does not require proof that damage has actually occurred.

Summary

The decision of the Polish Patent Office and the judgment of the Supreme Administrative Court should certainly be agreed with insofar as they relate to the assessment of damage to reputation. However, the refusal to register the disputed mark on the grounds of the risk of misleading the public raises doubts. As a rule, low similarity does not always lead to confusion. It seems that in the present case, the risk of confusion was found mainly due to the high recognition of the NIVEA trademark. The judgment explicitly states that ‘the low degree of similarity found is, however, offset by the high recognition of the NIVEA trademark’.

However, the judgment of the Supreme Administrative Court in case II GSK 312/22 confirms that the concept of reputation should be interpreted quantitatively, without reference to the quality of the goods or services bearing the trademark. The Supreme Administrative Court also emphasised the requirement for a reputable trademark to have a certain undefined threshold of recognition. However, the assessment of a trademark’s reputation should also take into account other relevant factors.