5         BULGARIA

5.1         LEGAL FRAMEWORK

The national IP legislation is generally harmonized and in conformity with the European law, reproducing a number of the requirements of the relevant EU directives and regulations, and is aligned with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).

The basic legal acts in the IP field are:

• Copyright and Neighbouring Rights Acts from 1993
• Patents and Registration of Utility Models Act from 1993
• Marks and Geographical Indications Act from 1999
• Industrial Design Act from 1999
• Topology of Integrated Circuits Act from 1999
• Penal Code from 1968

However, the Bulgarian court system suffers from the lack of specialized IP courts and although the claims for establishment and cessation of an infringement of IP rights are considered in accordance with the procedure for summary proceedings, it would take some time until a right holder obtains an enforceable decision within proceedings on the merits.

5.2         MAIN PRINCIPLES

Civil procedures are based on the following principles:

1. Civil proceedings are based on the Civil Procedure Code which regulates a three – instance court procedure.
2. Sofia City Court which has the statute of a district court is the first-instance court in civil cases related to infringement of IP rights in a panel of one judge, except for the disputes under the Copyright and Neighbouring Rights Act which are considered by all district courts in the country. The appellate courts (5 in total) only have second-instance competence over appeals against decisions and rulings of the district courts within its venue rendered in their capacity of first-instance courts. The appellate court sits in a panel of three judges, unless otherwise provided for by law. The third and final instance is the Supreme Court of Cassation (SCC). Very limited number of cases is admitted for cassation review. The seat of the SCC is in Sofia and has jurisdiction over the whole territory of the Republic of Bulgaria. The SCC sits in panels of three judges, unless otherwise provided for by law.
3. The language of the proceedings is Bulgarian. All evidence submitted has to be in Bulgarian or translated into Bulgarian by a certified translator.

In general, the following claims are admissible in the context of the exclusive IP rights:

• claim for finding of an infringement;
• claim for discontinuance of the infringement;
• claim for compensation of the damages;
• claim for seizure and destruction of goods subject to infringement, as well as of the tools used for commitment of the infringement;
• claim for delivery of the goods subject of the infringement;
• claim for payment of the expenses related to the storage and destruction of the goods, subject of the infringement;
• announcement of the court decision in two daily newspapers and via a TV channel with national coverage.

Invalidity of registered IP rights (trademarks, designs, patents, utility models, etc.) could be claimed within administrative proceedings, where the first instance should be the Bulgarian Patent Office. Its decision on the merits could be subject to court revision before the specialized administrative courts in Bulgaria: Sofia City Administrative Court as a second instance and the Supreme Administrative Court as a third and final instance.

Administrative proceedings for sanctioning of IP rights infringers are also in place. While copyright infringements are investigated and sanctioned by the Ministry of Culture, administrative infringements related to registered IP rights are in the competence of the Bulgarian Patent Office. In both proceedings the final act of the competent administrative authority is subject to two instance court appeal, where the competent courts are Sofia Regional Court and Sofia City Administrative Court.

Criminal proceedings are also available and the procedure is initiated by the public prosecutor office.  The competent criminal courts are regional court, appellative court and the final instance – the SCC.

Enforcing IP rights at the border is an efficient way to quickly and effectively provide legal protection to the right-holder and the procedure in Bulgaria has been harmonized with the EU regulations in the field of customs enforcement of IP rights.

5.3         IMPORTANT MILESTONES OF THE TRIAL

5.3.1        First instance procedure

First-instance proceedings commence by bringing the claim before the court in writing. The claimant specifies all the facts and submits all the written evidence the claim is grounded on in the statement of claim. If the claim is admissible, the judge sends a copy of it and its attachments to the defendant with instructions of the opportunities and necessities to submit a reply to the claim as well as instructions on the mandatory contents of the reply and on the consequences if it is not submitted. The court schedules the hearing of the case with subpoenaing the parties wherein evidence is collected. The court can also make known to the parties its draft of the report on the case, as well as direct them to mediation or another procedure for amicable resolution of the dispute.

 

The task of the open court session (open hearings) is specified as collecting of the evidence in the case and conducting the oral pleadings of the parties. Usually in IP infringement procedures experts are appointed in order to support the court in replying to specific IP questions for which the court is not competent to respond during the proceedings. The oral pleadings start only if all the evidence sought by the parties and admitted by the court is collected and the trial has been concluded. The court announces its decision with the motives within a one-month term following the session in which the consideration of the case was terminated.

The claims for establishment and cessation of an infringement of IP rights are considered in accordance with the special procedure for summary proceedings. The preparation of the case is carried out in camera without subpoenaing the parties on the day of receipt of the defendant’s reply or of the expiry of the term for submitting the said reply. The court schedules a hearing of the case for a date within three weeks and prepares a written report on the case. The cases considered according to summary procedure are heard in an open session with subpoenaing the parties. During the said session the court collects the brought in and presented evidence and hears the oral pleadings. The court sets a day whereon it is to announce its decision and which shall be the day as from which the term for appeal of the decision shall begin to run. The court is obligated to announce its decision, together with the motives for it, within a two-week term following the session in which the consideration of the case was concluded.

5.3.2        Judgment and further Appeals

When a judgment has been reached by the competent court, it could be appealed  before the appellative court. The appeal is filed with the court that rendered the decision within fourteen days of the date of serving party with the decision. This term is preclusive. If the decision is not appealed within the said term, it takes effect. Grounds for an appeal can be found when, for example, a first-instance decision has been proclaimed invalid, wrongful due to procedural omissions, inadmissible, and, in the presence of evidence – of non-compliance with substantive law.

5.3.3        Revision (Supreme Court)

The cassation appeal in Bulgarian procedure law is provided for as a regular, but not always possible due to the limit admissibility of third instance control. The decisions subject to cassation appeal to the SCC are the intermediate appellate decisions of the district and appellate courts. Cassation appeal must be filed in a 1-month term after delivery of the appealed decision to the party. Cassation appeal does not apply to any decisions on civil cases with an appealable interest not exceeding EUR 2,500 and commercial cases with an appealable interest not exceeding EUR 10,000. The intermediate appellate decisions are subject to cassation appeal provided the court has pronounced on a substantive law matter which: (1) has been determined in conflict with the practice of the SCC; (2) has been determined by the courts in a conflicting manner; (3) is relevant to the accurate application of the law, as well as to the progress of law. This outlines the grounds for admitting a cassation appeal and creates a filter which sets limits to the cassation appeal.

5.4         THE PRELIMINARY RULING QUESTION BEFORE THE EU COURT OF JUSTICE

Every Bulgarian judge has the right to send a question to the Court of Justice of the European Union for a preliminary ruling. In order for a case to be admissible before the CJEU, the question arising from it must not have been decided already.

If the requested Bulgarian court does not act as a final instance, it is free to grant or reject the request for preliminary ruling, and its decision will not be subject to appeal. However, if it acts as a last instance, the court is obliged to exercise the reference for a preliminary ruling, unless the answer to the question derives clearly and unambiguously from a previous judgment of the CJEU or the significance and the meaning of the provision or the act are clear enough.

In general, Bulgarian courts are reluctant to ask preliminary ruling questions to the CJEU.

5.5         COSTS AND FEES

Where civil proceedings are conducted, in general a state fee of 4 % of the value of the claim is due. In an IP litigation process, costs and fees may vary depending on the type of the proceeding, as well as depending on whether experts have been appointed to support the court in replying to specific IP questions. Administrative procedures related to registered IP rights require payment of state fees in the range EUR 150 – EUR 300.  Administrative and criminal procedures related to IP infringements or offences do not require payment of a state fee.

The costs for an appeal procedure are lower than the ones which occur in the first-instance.

The fees and costs for the proceedings, as well as the attorney’s remuneration (if there is such) are paid by the defendant in proportion to the upheld part of the claim. It is worth noting that where the amount paid by a party to the attorney exceeds the amount corresponding to the actual legal and factual complexity of the case, the court might adjudicate a lower amount of costs upon the request of the opposing party, however, the latter cannot be lower than the minimum amount specified in the tariff to the Bar Act. The tariff to the Bar Act sets minimum amounts of the attorney fees in various court and administrative proceedings or legal consultancy work.

5.6         PRELIMINARY INJUNCTION PROCEEDINGS

No such court order as the preliminary injunction exists under the Bulgarian legislation. However, the Bulgarian law provides for the so called ‘provisional measures’ which could be imposed by the civil court at the request of the person seeking civil protection against IP infringement. The following provisional measures are admissible:

• ban on any actions that allegedly constitute or shall constitute unauthorized use;
• seizure of the goods which allegedly infringe IP rights, as well as of any other evidence relevant to prove the infringement;
• taking out of use of the material intended to be used for IP infringement;
• sealing of the premises where allegedly the infringement is being committed or is going to be committed.

The prerequisites for imposing of one or more provisional measures without prior notice to the alleged infringer are statement that an IP infringement has been committed or is going to be committed or evidence is likely to be lost; and presenting written evidence which justify admissibility and equity of the claim. The provisional measures could be requested both before filing the claim on the merits and after initiation of court proceedings. If the request precedes filing of the claim and a provisional measure is enacted by the court, the person seeking protection against IP infringement should present evidence for filing the claim in up to one-month term after ruling of the court for enactment of the provisional measure (the court decides what should be the term for filing of the court claim). The enforcement of the provisional measures if allowed by the court (except for the ban on unauthorized use) shall be conducted by a bailiff.

5.7         CRIMINAL PROCEEDINGS

 

The wilful infringement of IP rights is considered a crime under the Bulgarian law and it could be sanctioned with monetary fines of up to EUR 25,000 and imprisonment of up to 8 years in exceptional cases.

Criminal proceedings operate under different rules than described above. The main procedure is regulated by the Criminal Procedure Code. Such procedures are typically initiated by the public prosecutor following further investigation by competent investigating authorities. Afterwards, the court may begin the prosecution against the defendant. The persons who suffered damages resulting from the crime are entitled to bring a civil claim for damages in criminal proceedings and become civil claimants. The criminal proceedings are preferred by right holders which do not have the resources to collect evidence of the IP infringement themselves and rely on the evidence collected by the public prosecution.