Fiona Cosmetics EOOD filed a cancellation request at the Bulgarian Patent Office regarding three-dimensional trade mark with reg. № 86121. The proprietor of the contested trade mark is represented by IP Consulting.
First, the applicant claims that the registration of the trade mark is contrary to the absolute grounds for refusal under Art. 11, since the trade mark is devoid of distinctiveness.
Next, the applicant claims to be a genuine proprietor of an earlier similar unregistered trade mark used in the period 2009-2010.
Distinctiveness
Within its decision, BPO states that a trade mark should always be considered in its entirety and is not to be split into its individual components, since the only significant factor for the purposes of assessing its distinctiveness is the overall impression it creates on consumers.
According to BPO the process three-dimensional trade mark has no direct connection with the goods in classes 3, 4 and 21. “Therefore, the sign should be considered distinctive and able to identify their commercial origin”.
Earlier unregistered trade mark
BPO conclusion is that the applicant failed to prove his claim for the actual commercial use of the unregistered three-dimensional mark, in its capacity as a sign indicating goods in class 3, before the date on which the contested trade mark was filed. Therefore, “the claim under art. 36, par. 3, p. 1 in conjunction with art. 12, par. 4 of the LTGI is unfounded“.
In view of the foregoing matters of fact and law, the President of BPO ruled that he„rejects the request for cancellation of the registration of trade mark with reg. № 86121 three-dimensional.“
