Decision of the Supreme Administrative Court in relation to an appeal against a Decision of the Commission for Protection of Competition under Art. 35, par. 2 of the Protection of Competition Act
THE COURT ACCEPTS THAT ACTIONS ON THE PART OF THE APPELLANTS PRIOR TO THEM BECOMING AWARE OF THE EXISTENCE OF EARLIER REGISTRATION FOR A TRADEMARK COULD NOT BE QUALIFIED AS VIOLATION OF ART. 35, PAR. 2 OF THE PROTECTION OF COMPETITION ACT DUE TO THE FACT THAT UP TO THAT MOMENT, THE APPELLANTS HAD BEEN ACTING IN GOOD FAITH
Bojinov & Bojinov represented Bulgarian manufactures and distributors of dairy products in a proceeding before the Commission for Protection of Competition under Art. 35, par. 3 of the PCA, as well as in a subsequent appellate proceeding against the decision of the Commission before a three-member panel of the Supreme Administrative Court.
The court found reasonable the objection of the appellants that, during the consideration of the case, the Commission has not discussed the provision of Art. 13, par. 3 of the LMGI, according to which the exclusive right to a trademark has effect with regard to third fair parties as of the date of publication of the registration of the mark. The third party awareness of the fact of the registration of the mark prior to the date of publication is a circumstance which excludes the possibility for a third party to benefit from the provision of Art. 13, par. 3 of the LMGI.
The court accepted that the actions of the appellants, prior to becoming aware of the existence of registration of the mark, could not be qualified as violation of art. 35, par. 2 of the Protection of Competition Act due to the fact that up to that moment, the appellants had been acting in good faith
The court accepted that the penalties imposed by the Commission, with regard to the violation of Art. 35, par. 2 of the PCA, are too high as the comparatively short relevant term of 2 months has not been considered.
In view of the disproportion of the sanctions imposed, the Court held that the decision of the Commission should be overturned in the part imposing sanctions on the appellants and the Court also ruled on a significantly lower penalty.
