"Cards Against Bulgarianness": The Legal Battle for Trademark Registration

One of the most interesting cases in IP Fabrika's practice is related to the attempt to register a trademark. "Cards against Bulgarianness"The case took us nearly three years and unfortunately resulted in refusal of the Patent Office of the Republic of Bulgaria to register the trademarkThe reason is that the trademark so requested contradicts Art. 11, para. 1, item 6 of the Trademarks and Geographical Indications Act (TMGA), namely that the trademark contradicts the rules of public order or good morals. 

The Patent Office reaches this conclusion because it believes that the expression "against Bulgarianness" violates generally accepted rules of decency and respectAccording to the department, the word "Bulgarianism" is a collective expression and is used to summarize the traits, qualities and customs of the Bulgarian people.  

"Cards against Bulgarianness" is a party game for adults in which participants compete to see who is the most fun. It was created by Creative With You Ltd. 

This refusal of the Patent Office was appealed by IP Fabrika to the Administrative Court of Sofia-City (ACSS) and administrative case No. 5651/2022 was opened. In this case, two forensic linguistic expertises were admitted, which in general terms had to answer the question - Is it possible to use the word "Bulgarian" in a negative sense?. 

The first expert opinion categorically answered this question in the negative, taking a straightforward approach to the case and using only the information from the latest official editions of the Explanatory Dictionary of Bulgaria from 1994 and 2012, the latter edition being more cosmetic. In this sense, the expert entirely builds his expertise on examples of the use of the word “Bulgarianness” from the Revival and the first half of the 20th century. Of course, the meaning of this word in the indicated periods of Bulgarian history is entirely positive and is part of our national idea. 

Both the first and second expert opinions reached the conclusion that the word "Bulgarianness" can only be used in the above-mentioned dictionary meaning and that any other use in a different sense is rather occasional. Both expert opinions failed to answer our questions related to this clearly and eloquently. how far the Bulgarian language is developing and to what extent the dictionary norm of words is the only one that should be taken into account when searching for the meaning of a certain wordIn this regard, we cited dozens of examples of the word "Bulgarianness" in various publications from authoritative sources. However, this was not taken into account. 

Thus, the decision of the ACSA was in the sense that it fully confirms the decision of the Patent Office to refuse registration of the trademark "Cards against Bulgarianness", since this brand would "create an unpleasant and offensive association in every reasonable individual from Bulgarian society with average sensitivity thresholds, perceiving it as an act against Bulgarian traditions, history and customs". 
 
The decision thus made was appealed by IP Fabrika before the Supreme Administrative Court (SAC), and cassation administrative case No. 10969/2023 was filed. We made a request for admission of a forensic trademark examination to answer the question What is the attitude of the average reasonable consumer towards the word mark "Cards against Bulgarianness"?The court did not grant this request and did not allow such an expert examination. 

In the cassation appeal, we pointed out a number of trademarks that are registered with the European Patent Office (EUIPO) and would be categorized as highly offensive, including “Kuro”; “Screw you” and “De puta Madre”. In all of these marks, the European Patent Office takes into account the consumers to whom the mark is directed, and does not take into account the receptivity of the average consumer in society as a whole. That is, an extremely important point is who the brand is aimed at and it is the average intelligence of the target users that is taken into account. 

Another argument put forward in the EUIPO's trade mark and design guidelines is that the specific goods and services for which the contested mark is filed should also be taken into account. 

Despite all the evidence that IP Fabrika presented to the Supreme Administrative Court – evidence of increasing sales of the game “Cards against Bulgarianness”, as well as evidence of organized public lectures and discussions to which the authors of the game were invited, the court upheld the decision of the Bulgarian Association of Trade Unions, and accordingly upheld the refusal of the Patent Office of the Republic of Bulgaria to register the trademark. The Supreme Administrative Court concluded that "the registration of the applied-for word mark would affect not only the moral foundations of society, but also legality as a principle of the established public order". 
 
Despite all the evidence presented, expert opinions conducted and all procedural actions taken, the word mark "Cards against Bulgarianness" was not protected on the territory of the Republic of Bulgaria. This raises a number of questions concerning the volatility of interpretation and reference to concepts such as "good morals" and "public order", as well as the impossibility of a word having more than one meaning, reflecting the contemporary limits of our thinking, if it is not codified in due order. 

Despite the Patent Office's refusal to register the trademark, the name, type and content of "Cards Against Bulgarianness" will not change. However, the refusal prevents the creators from "Creative With You" Ltd. from protecting their intellectual property. Fortunately, there are alternative administrative steps in this direction that have already been taken and the IP Fabrika team will take the necessary actions so that our clients can obtain protection for their intellectual property and their product.