Bulgarian Patent Office (BPO) has decided to reject a request for partial cancellation of a registered trademark because one the requirements under Art.38b, par.1 from Law on Marks and Geographical Indications is not met, namely the applied trademark witch is claimed to be in prior commercial use is not the same trademark as the already registered trademark for witch a cancelation is requested.
The owner of the registered mark – ЖОТЕМ / JE T`AIME (word) is successfully represented by the team of IP Consulting.
The request has been applied by “ELENA-95” EOOD with the statement that the company had used the non-registered trademark ЖОТЕМ and/or JE T`AIM in its commercial activities prior to the application date of the contested trade mark.
According to Bulgarian Patent Office the request for partial cancellation is not reasonable and the request is dismissed entirely.
The request has been applied under Article 26, par. 3, p.3 in connection to Art.12, par. 6 and Art. 12 par. 1, p.2 from Law on Marks and Geographical Indications and there are the following requirements witch should be implemented cumulatively:
– existing of a not registered trademark, witch is used by the requestor;
– filed application for the trademark;
– actual use of the not registered trademark in commercial activities in the territory of Bulgaria;
– the date of the commercial use of the not registered trademark should be prior to the application date;
– identity or similarity between the two trademarks (processed and commercial used one) and identity or similarity of the goods and services for which they have been applied/used.
In order to fulfil the condition that the cancellation applicant should show a filed trade mark application for the non-registered sign which they claim that has been used, ELENA-95 has filed a trade mark application for figurative trade mark, namely:
The Bulgarian Patent Office decided to reject the request for partial cancellation of the registration because the commercially used trademark, namely ЖОТЕМ/Je`taim, is not identical and it defers from the trademark witch has been applied for registration – ЕЛЕНА Пловдив ЖОТЕМ.