The case of "CANNABI OIL", i.e. the Polish consumer's awareness of the English language and the importance of neologisms in the context of the distinctive character of a trade mark

In 2019, an application was filed with the Polish Patent Office ("UP") to obtain the right of protection for the word mark "CANNABI OIL" to designate goods in class 5. Based on the premise of "ability to distinguish goods", the UP refused to grant the right of protection for the above-mentioned mark, holding that the mark did not have sufficient distinctive features, as it would be perceived by the public as an informative, descriptive sign in relation to all the goods it would designate - according to the authority, the sign consists only of a term having a specific meaning in English.
The case went to the Supreme Administrative Court. The judgment of 26 October 2021, II GSK 1216/21, is important insofar as it relates to the Polish consumer's knowledge of the English language and the meaning of neologisms when creating trademarks.  
In the Supreme Administrative Court's view, the fact that statistical data (attached to the case file) indicate that 62.45% of the Polish population is fluent in English is sufficient to conclude that the words "cannabis oil" will be understood by this group of recipients and, additionally, recipients of dietary supplements are used to having foreign-language names on product packaging.
In the opinion of the Supreme Administrative Court, the use of the neologism "cannabi" (created by removing the letter "cannabis") is irrelevant in the context of making the notified sign fanciful (created by removing the letter "s" from the word "cannabis"). "It should be recognised that the average viewer may not even notice that it is a mistake, precisely because he or she does not have such a high capacity for the principles of vocabulary of the English language as the Polish language. Therefore, the authority held that the removal of the letter 's' from the word 'cannabis' and the presentation of the designation as 'cannabi oil' does not render the meaning of those words, as hemp oil, incomprehensible to the relevant public." 
The Supreme Administrative Court, taking into account the meaning of the words "cannabis oil" in English, the level of knowledge of the English language among the relevant public, the understanding of the sign by the relevant public, the fact the fact that there is an error in the sign applied for consisting in the lack of the letter 's' and the impact of this lack on the understanding of the whole sign by the relevant public as well as the occurrence of the words 'cannabis oil' on the packaging of the hemp oil product, confirmed the position of the Polish Patent Office according to which the trade mark applied for does not have sufficient distinctive features and thus the right of protection cannot be granted.