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Bulgarian Supreme Administrative Court Upholds Cancellation of a Trade Mark on the Basis of Absolute Grounds

The Bulgarian Supreme Administrative Court recently dismissed the appeal against the decision of the Sofia Administrative Court which confirm the cancellation of Bulgarian trade mark registration № 99675 "BOWEN БОУЕН", word, for the services “medical services; care for the hygiene and beauty of people " in IC 44 and for all services in IC 41. The decision for cancellation was based on the absolute grounds for refusal listed in Art. 11 (2), (3), (4) from the Bulgarian Law on Trade Marks and Geographical Indications (LMGI).
 
According to these grounds a trade mark application follows not to be granted protection: if it is not a trade mark within the meaning of the legal definition for a trade mark, if it has no distinctive character, if it consists exclusively of signs or indications which have become customary in the current language or in the established practices of the trade in Bulgaria, if it consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or services.
 
In confirming the reasoning of the Sofia Administrative Court the Supreme Administrative Court stated that the assessment of the descriptive character of a sign follows to be conducted from the point of view of the interested consumer and from the point of the respective goods or services. In the present case the contested trade mark is a word trade mark consisting of the word BOWEN written in both Cyrillic and Latin. The concept “Bowen” is used and known as an “alternative type of physiotherapy” helping the body to self-regulate. The name of the technique comes from its founder – Thomas Ambrose Bowen who created the therapeutic method for natural healing of the human body known as the “Bowen Method”. After his death the practice of the method continues with various interpretations and is popularized by his followers. Therefore, the consumers of the method consider it as an alternative method of healing and not as a concrete person.
 
On the basis of the above the court opined that the trade mark is nothing more than a descriptive word, it does not have a meaning on its own which is different from the word element from which it consists. Therefore, the trade mark is not distinctive in relation to the services in IC 44 “medical services; care for the hygiene and beauty of people". It clearly guides the attention of the consumer to specific characteristics of the services and not to information about their commercial origin.
 
Similarly, the court concluded that the services in IC 41 “arranging of competitions (education and entertainment); arranging and conducting of symposiums, conferences, seminars, balls, concerts, colloquiums” could be used to promote all other goods and services for which the trade mark is registered.
 
Furthermore, the court stated that regarding the services “medical services” from IC 44, the term “Bowen” has become customary in Bulgaria as a specific method for healing.
 
Additionally, the court found that the sign “Bowen” serves to designate the services in question and mostly the their kind and method of application, sought results, etc.
 
On the grounds of the above arguments and the lack of evidence proving acquired distinctiveness the court upheld the ruling of the Sofia Administrative Court. It confirmed that the trade mark as a whole is descriptive and cannot identify the commercial origin of the services in IC 44 “medical services; care for the hygiene and beauty of people" and all services in IC 41.
 
Author: Iana Roueva Madey
Source: Supreme Administartive Court
 
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