Court rules against German retailer Lidl in cancellation proceedings

On June 26 2012 the Sofia City Administrative Court reversed the Bulgarian Patent Office’s (BPO) decision to cancel the word mark ОПТИСАЛ (OPTISAL) for goods in Class 5 of the Nice Classification ("pharmaceuticals to restore electrolyte balance, nutritional products to restore salt balance for medical purposes, dietetic substances for medical purposes"), owned by Kendi Odd, a Bulgarian manufacturer of medical products.

The BPO's decision was based on the earlier Community trademarks OPTISANA, registered for similar goods in Class 5 by major German retailer Lidl Stiftung & Co KG.

The court ruled that the marks were not similar visually, phonetically and conceptually to the extent that there could be a likelihood of confusion among consumers. According to the court, the distinctive elements of the marks were the endings 'sana' and 'sal'. The common element 'opti' was considered to be non-distinctive due to its popularity and common use in the trade, and the fact that numerous marks begin with the element 'opti'.

The nature of the goods in Class 5 was also taken into account. The court ruled that the purchase of pharmaceutical goods required a higher degree of attention on the part of consumers and, therefore, there was no likelihood of confusion between the marks.

The decision was subject to appeal to Bulgaria’s Supreme Administrative Court within 14 days of its publication.

Elena Marinova, PETOŠEVIĆ, Sofia