Decision of the Sofia Appellate Court pursuant to Art. 76, par. 1, item 1 and item 2 of the LMGI
CONSUMERS PERCEIVE A MARK AS A WHOLE, MEMORIZE ITS DISTINCTIVE ELEMENT AND DO NOT ANALYZE THE DETAILS. THE LIKELIHOOD OF MISLEADING THE CONSUMER IS COMPLEMENTED BY THE LIKELIHOOD OF ASSOCIATION WITH THE EARLIER MARK. TAKING INTO CONSIERATION THE INCREASED USE OF THE INTERNET IN ALL ASPECTS OF PEOPLE’S LIVES, A SIMPLE SEARCH ON THE SAME WOULD SHOW THE DOMAIN NAMES OF BOTH THE PLAINTIFF AND THE DEFENDANT.
The Law office of Bojinov & Bojinov represents a famous US company in the field of real estate, which has offices in more than 80 countries around the world and has established itself as one of the most influential agents with regard to real estate sales.
The above said company sought the legal assistance of Bojinov & Bojinov for the territory of Bulgaria in view of protecting the company’s rights concerning its highly distinctive brand against a Bulgarian company, which uses a very similar sign in respect of identical services, in violation of the honest commercial practice, and therefore creating a likelihood of confusion on the part of consumers for the territory of Bulgaria.
The Sofia Appellate Court established that the Defendant uses an infringing sign, which is very similar to the mark registered in the name of the Plaintiff, regardless of the existence of descriptive elements, such as BG EOOD, BG Ltd., Real Estate, etc., which accompany the sign in advertisements, blank forms, business cards, in relation to the activity of the Defendant – in particular real estate brokerage. Nevertheless, these elements do not impart sufficient distinctiveness to the sign of the Defendant. The common elements between the mark and the infringing sign leave the same visual, phonetic and semantic impression and therefore exists a real risk of association of the services rendered by the Defendant with the services covered by the trademark registered in the name of the Plaintiff.
On the grounds of the above arguments, the Sofia Appellate Court accepted that all of the prerequisites for finding of an infringement under Art. 76, par. 1, item 1 of the LMGI are present and therefore infringement on the part of the Defendant, of the exclusive right to the Plaintiff’s trademark exists. The Defendant was sentenced to terminate the use of the trademark at issue.
