Decision No 164/08.02.2011 – Sofia Civil Court, CD, VI-14 panel
Commercial Lawsuit 1596/2010
Claimant: Meat Factory Karlovo AD
Defendant: BELLA BULGARIA AD – client of IP Consulting Ltd
The claimant Meat Factory Karlovo AD states that on 3.02.2010 received a letter from BELLA BULGARIA AD with which the defendant claimed infringement of word trademark Osym. The claimant states that sausages with the name OSYM have been produced in Bulgaria since the 70s and that in the abovementioned situation BELLA BULGARIA AD had claims over the mark as well as over a specific product – flat sausage. The Bulgarian law does not allow use and registration of a trademark which is identical or similar to another well known trademark if there is a chance that the user might be misled. Until 2004 flat sausage Osym was produced by Meat Factory Haskovo AD, and from 2004 – by Meat Factory Karlovo AD (both joint-stock companies are part of BONI Holding AD). According to the claimant BELLA BULGARIA AD could not possibly be ignorant of the existence of flat sausage Osym having in mind the long-lasting term of circulation of the product due to which the defendant acted in bad faith filing an application for trademark Osym – word, reg. No. 63462 with priority since 05.05.2006. The claim filed by Meat Factory Karlovo AD is in accordance with Article 26 (2) p.4 from the Law on Marks and Geographical Indications (LMGI) – the registration of a mark is deleted by request of a person with legal interest in case the applicant has acted in bad faith when filing the application, which has to be determined by a court decision into force.
The defendant BELLA BULGARIA AD maintains that the claimant has no legal interest in initiating a lawsuit for determining bad faith during registration because he could not restore any rights over the name OSYM. The claims are also groundless because the claimant did not state that the symbol was his identification sign or that before the filing of the application for the trademark by the defendant the name OSYM was used only by the defendant for identifying his products in order there to be bad faith in the defendant’s conduct during the registration.
The defendant has registered trademark Osym, reg. No. 63462 but there is no proof for the class of products for which it has been registered and therefore the claim remains unproved. There is a lack of evidence for the bad faith during the registration which is in burden of the claimant. It has not been determined that the defendant as an applicant knew that the users identify the trademark with the claimant, nor that it has become popular as a mark thanks to the claimant. The claim is unproved and groundless and has to be disallowed.
D E C I S I O N
DISALLOWS the claim by Meat Factory Karlovo AD with legal grounds from Article 26 (3) p. 4 LMGI against BELLA BULGARIA AD as groundless.
