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Bulgarian Pharma Producer Fined for Imitation

Bulgaria’s Commission for Protection of Competition (CPC) fined the Bulgarian pharma producer Aromania Ltd. for imitation.
 
The CPC initiated the proceedings upon a claim for imitation and unfair soliciting of clients filed by the producer of pharmaceutical preparations and food supplements – Ramkofarm Ltd.

Ramkofarm Ltd. has been offering in the Bulgarian market for the past twenty years the food supplements that help digestion “Laxena” in both Latin and Cyrillic alphabet. It claimed that the owners of Aromania Ltd. own many companies whose commercial activity is to manage pharmacies. In having this commercial advantage it is argued that Aromania Ltd. can prioritize the marketing of their own products which are similar to Ramkofarm’s supplements. This is done by adding a prefix “Aro” to the supplement’s name in order to indicate the producer. In the present case Aromania Ltd. offers for sale the food supplement “Arolaxen” , used in Cyrillic, which has the same purpose as Ramkofarm’s “Laxena”.
 
Ramkofarm Ltd. stated that “Laxena” is an abbreviation of two words each one of them having its own meaning and that the name “Arolaxen” imitates it. In this way consumers associate the products of the parties to the case. On these grounds, Ramkofarm argued that Aromania Ltd. infringes upon Art. 35(1) and (2) and Art. 36 of the Unfair Competition Act (UCA) by imitating the trade mark and the product’s packaging as well as illegally soliciting clients by using the established competitor’s trade mark in the market.
 
In turn Aromania Ltd. contested the assertions made by Ramkofarm by stating that the supplement Arolaxen is part of a series of three products. All three products have the same packaging design. This along with the prefix ‘Aro” and the additional ingredients in the supplement differentiate “AroLaxen” from “Laxena”. Furthermore, there are a number of food supplements in the market which also contain similar word combinations, i.e. “Laxal”, “Laxofor”, “Xebrolax”, ‘Elaxa”, “Laxilin”, “Laxit”. Aromania Ltd. contested that Ramkofarm’s arguments that they are offering their products with priority over Ramkofarm’s products as there is no proof that this is indeed the fact.

In its decision the CPC considered the following preconditions for finding imitation: that the infringing use is in relation to a similar or identical trade mark which would lead to confusion on behalf of the consumers as to the products offered by an enterprise and that there has to be market recognition and notoriety of the original product. It was stressed that a competitor’s interests are protected under the UCA provided that there is an actual possibility for confusion which may give unfair advantage to the infringer.

In analysing the facts of the case and the above requirements the CPC found that Aromania Ltd. infringes the interests of its competitor by imitating its trade mark “Laxena” and by exploiting its repute. This conclusion was reached on the basis that there is market recognition and notoriety of the food supplements “Laxena” which have been put on the market since year 2000 in comparison to “AroLaxen” which are on the market since 2016. Additionally, the CPC found that there is a high degree of similarity between the trade marks “Laxena” and “AroLaxen” whereby the products have similar ingredients and the same purpose. Considering these facts, the CPC concluded that Aromania Ltd. has not differentiated its product’s name sufficiently from the one of Ramkofarm which leads to a conclusion that there is intention to take advantage of the repute of the earlier trade mark in order to make a profit. The CPC, however, rejected Ramkofarm’s claim that Aromania has illegally solicited clients due to its ownership of many pharmacies. Such a claim is admissible subject to the submission of evidence that Aromania has solicited specific clients of Ramkofarm.

The CPC imposed a fine of 2% of the annual turnover for the preceding financial year. The decision can be appealed before the Supreme Administrative Court which is the final court instance.

Author: Iana Roueva Madey

Source: Commission for Protection of Competition
MADARA LAW
111 Dimitar Petkov Blvd.
Office 3-6, Fl. 3
Sofia 1309
Bulgaria
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