Doubtful evidence not enough
COURT RULES - SIMPLY POURING ON HEAPS OF EVIDENCE DOESN'T HELP WITH CREDIBILITY
This is a prime example that quantity of evidence does not compensate for quality. Failure to provide viable evidence cannot be overcome by simply presenting more and more, as the case for cancellation of a trademark, started by the local subsidiary of a large international dairy company, represented by Vasil Pavlov and Momchil Lazarov showed recently.
The matter began with a request for revocation of a trademark, owned by a local food company, registered for goods in class 29. The request was based on non-use of the contested trademark. Before the BPO the trademark owner disputed the claim and provided a large quantity of evidences - invoices for sales, promotional materials, as well as packagings of some goods, claiming that those were used on the market in the relevant timeframe.
The claimant argued that the majority of the evidence had absolutely no representation of the contested trademark itself. In fact, that trademark appeared only on some of the packaging presented. Furthermore, many of the packagings themselves concerned goods that were not contested. Finally and most importantly, nine months after the claim was filed, the clamant was able to identify that on the market there were packagings that did contain the contested mark, alongside with others that didn't contain it, used for the same goods and presents the BPO with evidence for that (notary certified protocol). Based on all of those facts, the BPO decided that the only evidence that did show the contested mark were quite dubious, and revoced the registration of the trademark.
The decision was appealed by the trademark holder before the Sofia City Administrative Court (SCAC). The appeal stated that the BPO has wrongfully disregarded the evidence presented and contested the findings of the claimant, stating that it was no proof that the presented packages were not used in the relevant period. The trademark holder requested also whitneses hearing in suport of the fact that the invoices presented by him (which do not contain the contested trademark) are actually related to sells of the goods with contested trademark, but this was not permited by the court. The defendant basically supported its position from the administrative phase, stating again that the evidence presented by the trademark holder in the large part did not contain or represent the trademark, were outside the relevant period, and the ones that did contain the trademark were quite suspicious.
The SCAC reviewed the case and ruled in favor of the defendant. It stated that indeed most of the evidence provided by the trademark owner did not represent the trademark, and was outside the relevant period. As far as the packages presented, their genuine nature was doubtful, due to the findings shown in the notary certified protocol. Since there were no evidence that supported the statements of the trademark holder, other than those doubtful packages, the Court ruled that the decision of the BPO should stand.
The decision was appealed by the trademark holder before the Supreme Administrative Court (SAC) with basically the same reasons. The SAC reviewed the case and upheld the decision of the SCAC.
It stated that the findings in the notary certified protocol and the lack of any other evidence that represented the trademark were enough to raise serious doubt about the validity of the packagings presented. It stated also (which is probaly the most importat in this case) that the SCAC has rightfully refused to allow witnesses of the claiment to confirm that the invoices presented (that did not contain the trademark) actually refer to sales of goods bearing that mark, since this would essentially be an attempt to refute a document that was issued and presented by the claimant himself, which is completely unacceptable. Since no other evidence supported the claims of the trademark holder, the decision of the SCAC (and the BPO) was correct and was upheld.