Abstract
The approach undertaken by the Bulgarian legislator regarding IP rights is that each type of IP is regulated in a separate statutory act. Therefore, there is no single definition of exhaustion of IP rights, and depending on the type of IP, the rules of exhaustion may vary.
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Notes
- 1.
Initially, the principle was set in Art. 18 (4) of the law.
- 2.
The adoption of a separate article to regulate exhaustion of rights happened in 2002.
- 3.
The current version of Art. 18a reads as follows: “The first sale or another transaction on the territory of the Member States of the European Union made by the copyright holder or with his consent which transfers ownership in the original or copy of the work shall lead to termination of the right of their distribution on this territory, without prejudice to the right to rental. (2) The provision of para 1 shall not affect the rights referred to in Art. 20 and Art. 22a, para 2. (3) The provision of para 1 does not apply to cases of provision of originals or copies of the work in digital way, in respect to the materialised copies of the work made by the recipient with the consent of the copyright holder.”
- 4.
Considering, however, that on EU level exhaustion for the territory of the European Economic Area is to be applied, it may be reasonably concluded that the exhaustion rule should be interpreted as covering the territory of the European Economic Area.
- 5.
The law uses a specific legislative technique extending application of that rule to the listed types of related rights by way of reference, made, respectively, in Art. 84, Art. 90, Art. 90v and Art. 93 of the LCRR.
- 6.
Except for geographical indications, which is understandable in view of the characteristics and function of that type of industrial property.
- 7.
Art. 15 of the Law on Marks and Geographical Indications.
- 8.
Art. 21 of the Law on Industrial Designs.
- 9.
Art. 20a of the Law on Patents and Registration of Utility Models.
- 10.
Art. 18 of the Law on the Topographies of Integrated Circuits.
- 11.
Directive No. 2008/95/EC of the European Parliament and the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks, OJ 2008, L 299, p. 25.
- 12.
Directive No. 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs, OJ 1998, L 289, p. 28.
- 13.
Art. 5, para. 4.
- 14.
With respect to Arts 34–36 of the TFEU.
- 15.
Decision on criminal case No. 2556 of 2009 of Plovdiv Regional Court.
- 16.
Interpretive Decision No. 1/2009 in interpretive case No. 1 of 2008 of the General Assembly of the Commercial Chamber of the Supreme Court of Cassation. Interpretive decisions are binding upon the lower instance courts, as well as the panels of the Supreme Court of Cassation.
- 17.
Interpretive Decision No. 1/2009 in interpretive case No. 1 of 2008 of the General Assembly of the Commercial Chamber of the Supreme Court of Cassation.
- 18.
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce”), OJ 2000, L178, p. 1.
- 19.
Decision No. 133 of 15 January 2013 on commercial case No. 1055/2010 of the Supreme Court of Cassation, First Chamber, 3-judge panel.
- 20.
It is interesting to note, that the courts in all mentioned decisions ruled that there was no trademark infringement. The unauthorised use of others’ trademarks for advertisement purposes was not examined in detail and only a general conclusion was made, that since the cases concerned offers for sale of genuine goods, the use of others’ trademarks to offer such goods (i.e., the advertisement purposes of the use) did not constitute trademark infringement under the LMGI.
- 21.
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (Information Society Directive), OJ 2001, L 167, p. 10.
- 22.
CJEU, Case C-128/11, UsedSoft GmbH v Oracle International Corp., ECR 2012 I-0000, pt 56.
- 23.
CJEU, Case C-128/11, UsedSoft GmbH v Oracle International Corp., ECR 2012 I-0000, pt 72.
- 24.
The LCRR determines this right as “the provision of access to unlimited number of persons to works or parts thereof, by wire or wireless means, where access may be made from a place and at a time, individually chosen by the individuals.”
- 25.
The statutory acts regulating the different types of IP provide for some IP specific remedies, e.g. civil claim for destruction of counterfeit goods, which however seem to be irrelevant for the present report.
- 26.
Mainly in relation to the activities of “torrent” related websites.
- 27.
Indeed, for the purposes of collection of evidence, the law entitles the claimant to request provision of evidence and information from the defendant and third persons. This procedural possibility however, is not that productive, because it does not have the effect of surprise and also in practice the possibility of the claimant to make multiple of such requests, depending on the obtained or provided information, is not unlimited.
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Tsenova, T.V. (2016). Bulgaria. In: Kilpatrick, B., Kobel, P., Këllezi, P. (eds) Compatibility of Transactional Resolutions of Antitrust Proceedings with Due Process and Fundamental Rights & Online Exhaustion of IP Rights. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-27158-3_22
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DOI: https://doi.org/10.1007/978-3-319-27158-3_22
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