31 May 2012
On May 5-9, 2012, Plamena Georgieva, IP Attorney and Senior Associate at Dimitrov, Petrov & Co. Law Firm, participated at the 2012 Annual Meeting of the International Trademark Association (INTA), a world renowned, industry brand-name association dedicated to the support and advancement of trademarks. Featuring a network of powerful brands with more than 5,900 trademark owners, professionals and academics from more than 190 countries, the conference provided an оpportune forum for introducing Dimitrov, Petrov & Co.’s IP practice to some of the leading companies and legal practitioners worldwide. In the course of these diverse international meetings, Plamena Georgieva managed to make valuable contacts on behalf of Dimitrov, Petrov & Co. and to expand the law firm’s networking base beyond the conventional geographical span of European IP law coverage into such regions as North and South America, Asia and the Middle East. In addition, Ms. Georgieva attended a series of topical lectures and table topics spanning a broad spectrum of relevant and evolving issues within contemporary IP law, including the following: specifics of trademark protection in the pharmaceutical industry, cyberspace aspects of IP protection, use and protection of Community trademarks, etc.
Interpretative Decision No 1 from May 11, 2012 by the Supreme Court of Cassation
The General Assembly of the Commercial College of the Supreme Court of Cassation (GACC of the SCC) adopted an interpretative decision regarding the following issues:
“(1) Should the resolution adopted in item 1 of Interpretative Decision (ID) No 1 from June 15, 2009 by the GACC of SCC stating that “The import of original goods, affixed with the trademark and with the consent of the trademark holder, when the import is carried out without the consent of the trademark holder, does not fall within the definition of infringement of the right of the registered trademark within the meaning of Art. 73, Para 1 in connection with Art. 13, Para 2, item 3 of the Marks and Geographical Indications Act (MGIA)” be considered lapsed?; and
(2) When does the exhaustion of the rights conferred by a mark within the meaning of Art. 15, Para 1 of the MGIA, in its version prior to the amendment made with SG, issue 73/2006 come: when goods of the kind/line that the trade mark has been registered for are released on the market by the trademark holder or with his/her consent or when each individually specified consignment/copy of the goods is released on the market?”
With regard to the first of these issues the GACC of the SCC took into consideration the following:
The requisition for issuance of an interpretative decision is based on the provision of Art. 633 of the Civil Procedure Code and is motivated by an order of the Court of Justice (CJ) of October 28, 2010 on case C-449/09 on the interpretation of Art. 5 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks. GACC of the SCC finds that there is no discrepancy between the interpretation of the CJ and the adopted resolution in item 1 of ID No 1/15.06.2009. ID No 1/15.06.2009 states that the import of original goods does not constitute an infringement, but only pursuant to Art. 73 of the MGIA. The question whether the import of original goods for which the rights conferred by a trademark are not exhausted constitutes an infringement of the trademark right has not remained outside the focus of the SCC. That question has been considered in item 5 and item 6 of the motives of ID No 1/15.06.2009 but the resolution has not been included in the disposition because it has not been a subject to the requisition for issuance of an interpretative decision. Nevertheless, the SCC has defined the offence as an infringement of the power to dispose with trademark right when an import of original goods is carried out without the proprietor’s rights conferred by a mark being exhausted, i.e. in the rights under Art. 13, Para 1 of the MGIA in connection with Art. 15, Para 1 of the MGIA.
With a view to the above-mentioned, there is no full identity in the subject matter of the interpretation of Art. 5 of Directive 89/104/EEC made by the CJ and the interpretation of Art. 73 and Art. 13 of the MGIA made by the SCC in ID No 1/15.06.2009. The wider subject matter of the interpretative activity of the CJ is considered by the SCC, therefore there is no reason for the adopted in item 1 of the ID No 1/15.06.2009 by GACC of the SCC to be considered lapsed.
With regard to the second issue the GACC of the SCC adopted the following:
Exhaustion of the rights conferred by a mark within the meaning of Art. 15, Para 1 of the MGIA, in its version prior to the amendment made with the SG, issue 73/2006, comes when each individually specified consignment/copy of the goods is released on the market by the by the trademark holder or with his/her consent.
The Decision has been signed with dissenting opinion by some of the judges.
Ordinance No РД-02-20-6/24.04.2012 on the Issuance of Certificates Based on the Population Register
In the State Gazette, issue 37 of May 15, 2012 was promulgated Ordinance No РД-02-20-6/24.04.2012 on the Issuance of Certificates Based on the Population Register. The Ordinance is issued jointly by the Minister of Regional Development and Public Works and the Minister of Justice, on the grounds of Art. 24, Para 2 of Civil Registration Act. “The ordinance regulates the procedures for issuance of certificates based on the population register, the types of certificates and their samples.”(Art. 1 of the Ordinance).
The certificates are issued by municipal mayors, regional mayors, or mayors of towns and villages, and they may delegate that power to certain administraton officials.
Depending on whether the municipality, or region, or town or village have access to the National Database "Population", certificates are issued to all persons or only to the persons with permanent or current address in the respective territorial division.
Тhe Ordinance contains a Sample of a written request for starting the certificate issuance procedure. The certificates themselves are also issued in compliance with approved samples in which the required information is filled in. ”The Certificates may be issued to the persons they refer to, to their legal representatives or to their heirs”. (Art. 5, Para 1 of the Ordinance). If these persons have authorized a third person in a notarized form, a certificate could be issued to him/her as well (Art. 5, Para 2).
Refusal by an official to issue a certificate can be made, if it is motivated and in accordance with the procedure of the Administrative Procedure Code, when the information, necessary for the issuance of the requested certificate is not available in the population registers.
In Chapter two of the Ordinance the kinds of certificates and the procedures for their issuance are defined. The certificates are regulated as follows:
- Certificate of heirs;
- Certificate of marital status;
- Certificate of marital status, spouse and children;
- Certificate of spouse, kinship ties;
- Certificate of a mother’s biological children;
- Certificate of legal limitations;
- Certificate of identity of a person with different names;
- Certificate of entry in the population register;
- Certificate of marriage of Bulgarian citizen abroad;
- Certificate of provision of a foreign citizen with a document for marriage in Republic of Bulgaria;
- Certificate of permanent address;
- Certificate of current address;
- Certificate of changes of permanent address;
- Certificate of changes of current address.
Interpretative Decision No 3 from May 18, 2012 by the Supreme Court of Cassation
The General Assembly of the Civil College and the Commercial College of the Supreme Cassation Court (GACCCC of the SCC) adopted an interpretative decision regarding the following issue:
“What is the substance of the term ‘periodic payments’ within the meaning of Art. 111, letter “c” of the Obligations and Contracts Act (OCA) and what are its main and mandatory characteristics?” With regard to this issue, the GACCCC of SCC took into consideration the following:
There is currently no legal definition of the term ‘periodic payment’. Its substance raises debate in the legal doctrine and there is controversial case law on the implementation of the three-year extinctive prescription for liabilities referred to as ‘other periodic payments’ in the provision of Art. 111, letter “c” of the OCA, regarding the contractual relations between customers, on the one hand, and heating, electricity and water suppliers, and mobile operators, on the other hand. The purpose of setting a special shorter prescriptive period for those liabilities is for debtors to be protected with regard to those payments, which the parties to the relation are aware of in advance. As the provision of Art. 111, letter “c” of the OCA refers to an exception, it should not be interpreted in the wide sense. It should be implemented only in the event of such periodic payments that are similar to rents and interest.
‘Periodic’ is a payment that is not a single one and is not limited to a single transfer of money or substitutable items. The distinctive feature of periodic payments is the predetermined moment that the parties are aware of and when the recurring obligation for payment should be fulfilled. However, recurring obligations for payment are periodic only if the date of payment is predetermined, and not in the cases where they accidentally have become executable during certain periods. Liabilities to heating, electricity and water supply companies, as well as to communication service providers also contain the specified features of the term, therefore, they are periodic payments within the meaning of Ar. 111, letter “c” of the OCA and the three-year extinctive prescription applies to them. The obligations of consumers of goods and services provided by those companies are fulfilment of recurring money obligations originating from a contract, whose date of payment occurs at predetermined time periods, and their amount is initially identifiable, regardless of whether the separate payments are at the same or different amount.
With a view to the above-mentioned the GACCCC of the SCC adopted the following:
The term ‘periodic payments’ in the meaning of Art. 111, letter “c” of the OCA is characterized by execution of recurring obligations for transfer of money or other substitutable items, the date of payment for which occurs at predetermined time periods, and the amounts of the payments are initially identified or identifiable, regardless of whether the time periods are the same and whether the payments are equal.
Ordinance No РД-16-558 of May 8, 2012 on the Collection and Provision of Information through the National Information System for the Potential, Production and Consumption of Energy from Renewable Sources in the Republic of Bulgaria.
In the State Gazette, issue 39 of May 22, 2012, Ordinance No РД-16-558 of May 8, 2012 on the Collection and Provision of Information through the National Information System for the Potential, Production and Consumption of Energy from Renewable Sources in the Republic of Bulgaria was promulgated. The Ordinance enters into force on May 22, 2012, except for Art. 7, Para 1, item 13 and Art. 10 which enter into force on December 31, 2012.
The Ordinance implements the regulations of Directive 2009/28/EC of the European Parliament and of the Council of April 23, 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC. The stated Directive 2009/28/EC establishes a common framework for the promotion of energy from renewable sources and sets mandatory national targets for the overall share of energy from renewable sources in the gross final consumption of energy and for the share of energy from renewable sources in transport.
The Ordinance of May 8, 2012 repeals Ordinance No 16-28 of January 22, 2008 on the Content, Conditions and Procedure of Providing Information of the Produced, Bought and Sold Quantities of Energy from Renewable and Alternative Sources and of the Produced, Bought and Sold Quantities of Biofuels (SG, issue 11 of 2008). The new Ordinance also initiates certain changes in the range of information on the potential, production and consumption of energy from renewable sources and the methods for its acquisition, storage and processing.
According to the Ordinance the collected information should be no longer submitted to the Minister of Economy, Energy and Tourism but to the Sustainable Energy Development Agency (SEDA). An obligation is introduced for the information to be collected and provided only electronically, through the National Information System for the Potential, Production and Consumption of Energy from Renewable Sources, thus allowing information exchange with other executive bodies, which maintain registers or information systems.
The new Ordinance also expands the circle of persons obliged to provide information, as well as the purposes for which SEDA collects information.
Ordinance No РД-02-20-8 of May 11, 2012 on the Creation and Maintenance of a Public Register of the Associations of Owners of Buildings Under a Condominium Ownership Regime
Ordinance No РД-02-20-8 of May 11, 2012 on the Creation and Maintenance of a Public Register of the Associations of Owners of Buildings Under a Condominium Ownership Regime (hereinafter referred to as the Ordinance) was promulgated in the State Gazette, issue 40 of May 29, 2012.
This ordinance determines the procedure for keeping, the access and the sample of the Public Register of the associations of owners of buildings under a condominium ownership regime. According to Art. 2, Para 1, all associations of owners, established under the Condominium Ownership Management Act (COMA) are subject to registration in the Public Register. Under Art. 2, Para 2 the entering of the associations should be made in the register of the respective municipality where the building is situated.
The Public Register is to be created by the municipal administration according to the sample provided in Appendix No 1.
In this Register, according to Art. 2, Para 3 of the ordinance, the following information has to be entered: association name, address, the period it is established for, scope of activity, the undivided shares presented in the association, names and addresses of the Management Board members (or the Manager) and the type of representation. This information, as well as any further changes, should be published on the web site of the municipal administration.
Section II of the Ordinance governs the procedure for entry in the Register. The Chairperson of the Management Board (the Manager) of the association of owners, shall submit a registration application to the respective municipal administration within 14 days of the Constituent Assembly. Pursuant to Art. 3, before the entry, the mayor of the municipality or an official authorized by him/her, verifies the compliance of the association’s establishment with the requirements of the COMA. Following this verification, the mayor or an authorized official enters/orders the entry of the association in the Register. A certificate of entry is issued, as well as a registration card for the association. The refusal of registration is subject to appeal before the administrative court with jurisdiction over the location of the condominium, following the procedure set forth in Art. 46 of COMA.
Art. 9 introduces the obligation of the Chairperson of the Management Board (the Manager) of the association, to inform the municipal administration of every change of the circumstances under Art. 2, Para 3.
According to Art. 11, the municipal or regional administrations keep a record with information about the managers or chairpersons of the management boards of buildings or separate entrances under a condominium ownership regime. The managers or chairpersons of the management boards have to file a notification, within one month after their election. The mayor of the municipality or the region has to provide the Minister of Regional Development and Public Works with an annual report about the filed notifications of condominium ownership under Art. 11 for the previous year (Art. 12, Para 1).
The Ordinance is issued pursuant to the COMA and revokes Ordinance No 3 of 2009 on the Creation and Maintenance of a Public Register of Buildings Under a Condominium Ownership Regime.