genuine useThe Administrative court, Sofia fully upheld an appeal filed by the team of IP Consulting against a Decision by the President of the Bulgarian Patent Office to revoke the Bulgarian trademark No 29314 ГРАДИНА GRADINA, registered for goods in class 01 and 05. The Administrative judge had to determine wether the trademark owner “Agro-Bio Trading” Ltd. had fulfilled its obligation to use the mark as per Article 19, paragraph 1 in relation with Article 28, paragraph 1 from the Bulgarian Law on Marks and Geographical indications.
The court acknowledged that the aforementioned provisions do not expressively define a quantitative criterion for determining wether there is genuine use of the contested mark. There is genuine use if the mark is used in accordance with its essential functions to ensure the identity of the goods for which it is registered in order to maintain or create a market for those goods or to maintain or create a market share of the goods protected by the mark. The judge further notes that the use of the mark relates to the sale or imminent sale of the goods for which the mark is registered on the market. The commercial success or the market share held by the trademark owner is not necessary.
Taking into account all of the evidence presented by the plaintiff and the two expert opinions, the Administrative court, Sofia concluded that the genuine use of the mark No 29314 ГРАДИНА GRADINA for the goods in class 01 and 05 before the filing date of the cancellation request was undisputedly established. Therefore, as the requirements for its revocation were not met, the court reversed the Decision by the President of the Bulgarian Patent Office. The Office was ordered to pay the costs incurred in the proceedings.