Euro Sklep argued that the opposition was unfounded, because the argument that the trade mark is an imitation symbol is an obvious abuse of the law by the Commission, since the examination of signs is to be assessed as a whole, and not by attributing the illusory similarities.

The Polish Patent Office (PPO) invalidated the right of protection. According to the PPO, the average consumer who sees the mark with the prominent yellow sign EURO accompanied by five-pointed stars in a semi-circle, will associate it with the flag of the European Union. The PPO pointed out that the use of the EURO caption, as well as graphic elements in the form of a bird or incomplete number of stars, does not rule out conceptual similarity, since use of the word euro as the dominant element of the mark may exacerbate the association of the recipient that he has to deal with an institution agenda of the European Union.

Euro Sklep filed a complaint against this decision and noted that in this case the PPO was not dealing with registration of the flag of the European Communities/European Union as a trade mark, but at most, it would be its imitation from a heraldic point of view. However, the PPO did not properly explain this issue. The Company noted that the imitation prohibited under Article 6ter of the Paris Convention is narrower in scope than an imitation, which normally is considered to be unacceptable between the trade marks. According to Euro Sklep, this view is particularly justified because very often the National flags and emblems contain items commonly used, in particular those relating to flora and fauna, such as lions, bears, flowers, etc., which must remain in public domain for free use.