Decision of the Sofia Appellate Court, Commercial Division, pursuant to Art. 76, par. 1, item 1 and item 2 of the LMGI
THE EXISTENCE OF A LEGAL DEFINITION FOR THE TERM “IMPORT” IN THE LMGI EXCLUDES THE APPLICATION BY ANALOGY OF THE PROVISIONS OF THE CUSTOMS LAW, WHERE THE TERM “IMPORT” IS DEFINED AS ONE OF THE NINE TYPES OF CUSTOMS REGIMES APPLIED TO GOODS CROSSING THE BORDERS OF THE REPUBLIC OF BULGARIA. WITHIN THE MEANING OF ART. 13, PAR. 2, ITEM 2 OF THE LMGI, PLACEMENT OF GOODS UNDER THE REGIME “TRANSIT” OR ANOTHER TYPE OF CUSTOMS REGIME, SHALL ALSO BE CONSIDERED AS “IMPORT” OF THE GOODS, RESPECTIVELY USE OF THE MARK UNDER WHICH THE GOODS ARE DESIGNATED.
The subject matter of the proceeding before the Sofia Appellate Court is an appeal, lodged by the famous Japanese company C.K.K., against the decision of the Court of first instance, with which the Sofia City Court rejects the claims under Art. 76, par. 1, item 1 and item 2 of the LMGI against a Bulgarian company importing for the territory of Bulgaria goods designated under the mark of the plaintiff without the plaintiff’s consent.
The Court of first instance dismissed the claims with the argument that the defendant did not actually “import” goods designated under the plaintiff’s registered mark, and that the goods at issue should have been placed under “transit” regime, as the same were intended for a Serbian company.
The appellate court accepted that the existence of the explicit provision of § 1, item 12 of the Additional Provisions of the LMGI, which gives a legal definition of the term “import” within the meaning of Art. 13 of the LMGI, excludes the application by analogy of the provisions of the Customs Act, where the term “import” is used in its sense of being one of the nine types of customs regimes under which the goods crossing the borders of Bulgaria are placed.
The Sofia Appellate Court also found that within the meaning of Art. 13, par. 2, item 2 of the LMGI, the placement of the goods under “transit” regime shall also be considered as “import” of the goods, respectively use of the mark, for the goods are actually transferred across the border in this case as well. In view of the certainty that the goods at issue crossed the Bulgarian border, the defendant performed an action under Art. 13, par. 2, item 3 of the LMGI.
On the grounds of above arguments, the Sofia Appellate Court overturned the decision of the court of first instance in its entirety and recognized as established, in respect of the defendant, the fact of infringement of the exclusive right over the plaintiff’s trademark. The defendant was sentenced to terminate the infringement.
