As a form of intellectual property the trademarks (to be more precise – the rights associated with them) are put under the protection of the Bulgarian legislation.
The Bulgarian Law for Trademarks and Geographical Symbols settles various mechanisms for protection against breaches of trademarks. It lays down a specific procedure for registration of a trademark in the Bulgarian Patent Office that one must follow in order to obtain the right to use this protection. The latter means that the Law for Trademarks and Geographical Symbols provides legal protection only of registered marks that have been used without the consent of their owners.
At the same time the Competition Protection Law settles a specific punitive procedure before a special jurisdiction – the Competition protection commission – that sanctions the unallowed use of trademarks. The procedure can be set in motion by everyone who considers his trademark offended and brings his claims under the consideration of the Commission. In order to be sanctioned by the Commission, the “unallowed” use of a trademark should be qualified as unloyal competition i.e. to be (as Art. 30 of the Competition Protection Law says (an action or inaction of the subject in his economic activity that collides with the good trade practice and has affected or could affect the interests of the competitors in their relations with each other or with the consumers). Article 33 (2) forbids the imitation of a trademark (the use of a trademark or another distinctive sign that is identical or similar to those used by other persons) in a way that could affect the interests of the competitors or those of the consumers. Put in other words, the text says that it is not necessary to get a mark registered in the Patent Office in order to use the protection mechanisms settled by this law. Therefore, the Commission could be approached by a person claiming offence of a trademark that has not been registered on behalf of him.
Although the latter hypothesis is rare and could hardly be put in practice (having in mind the safety measures timely taken by the business subjects for getting the trademarks registered), it is not impossible. In order to reach the aim of the provision and to get the offender sanctioned for imitation of a trademark after Article 33 (2) CCL, the claimant has to prove that:
- there is competition between him and the offender; (they sell their goods or offer their services at the same geographic and product market);
- the offender uses in his economic activity a trademark or another distinctive sign that is identical or similar to the one used by the claimant;
- the trademark is used by the offender in a way that has affected or can lead to affecting the interests of the competitors and/or the consumers.
In the administrative procedure before the Commission the claimant is not obliged to prove that his interests as a competitor or those of the consumers are really affected by the imitation. It is enough to be ascertained the fact that such affection is possible.
The claimant should also prove that his trademark has gained reputation – the products that he offers are well known and are associated by the public namely with the trademark in question. Through the similarity or the identity of the trademark the competitors exploit the reputation of the products bearing the latter. Thus they profit of the popularity of another person’s product for entering the market on the shoulders of the claimant’s goodwill.
What is hard to be proved, when there is no registered trademark, is the fact that namely the claimant is the owner of the trademark, that he is the one who has the exclusive right to use it in his economic activity. In this sense the claimant must collect proofs that he is the one that has achieved the trademark’s reputation, as well as that the participants in the market associate this reputation namely with him as a business subject.
In this connection the following case would be of interest: a claimant who has no registration certificate issued by the Patent Office claims before the Commission that imitation has been made of his trademark, by an offender who turns to be the formal owner of the trademark after the Law for Trademarks and Geographical Symbols.