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The term “application for a trademark made in bad faith” includes knowledge of the fact that another entity has been using, in its course of trade, an identical or similar sign through which it has established itself on the market.

14 July 2011

With a decision entered into force the Sofia Court of Appeal has overturned a decision of the Sofia City Court that rejected two joint claims filed by an international cosmetics company, based on art.124, par. 4 of the Civil Procedural Code (CPC), in connection with art.26, par.3, sec.4 of the LTGI.
The contested decision of the first instance court states that bad faith in applying for the trademark registrations in question would be present if, at the time of filing of the applications, the defendant had knowledge that those signs enjoy protection on specific territories as objects of IP rights of the plaintiff, or in other words - that those are objects of exclusive rights. The Court concluded that the plaintiff failed to prove the fact that the defendant was aware that the former had exclusive IP rights over the trademarks in question and only viewed him as a producer of cosmetic products and therefore the subjective constituent element of bad faith was not present in this case.
The Court of Appeal does not share that view and specifically pointed out that in order for bad faith to be established it is not necessary that the defendant knew the trademarks are objects of exclusive rights, but it is enough that the latter has knowledge of the fact that another entity has used in the course of its trade an identical or similar sign, through which it has established itself on the market and has developed consistent business relationships with certain clients. As a good professional the defendant knew or was supposed to know that each trademark is subject to legal protection, that a legal regime that regulates and protects IP rights exists and that the trademark cannot be subject to unwarranted use.

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