(CN) – Reinstating trademark protection for mineral water produced in Devin, Bulgaria, the European General Court found Thursday that any association tourists might have with the tiny spa town is not enough to cause confusion.
“While it must be held that a proportion of European Union consumers know the town of Devin, that proportion must, in any event, be considered to be very small,” the ruling states. “That conclusion in no way calls into question the natural beauty of Devin and the healing properties of its spa waters, nor the economic efforts made to promote tourism in Bulgaria.”
Devin initially obtained the trademark from the European Intellectual Property Office in 2011 and filed suit when that mark was invalidated five years later, following a challenge by the Haskovo Chamber of Commerce.
In vacating the trademark, the EUIPO observed that Devin’s geographic location was too well known by the general public in Bulgaria, as well as many consumers in the neighboring countries of Greece and Romania, for the mineral-water trademark to stand.
Annulling that decision on Thursday, the Luxembourg-based General Court found that the EUIPO wrongly focused on a very small group of foreign tourists without considering the average EU consumer.
The 18-page decision includes statistics about the number of foreign tourists who visited “Devin in 2014, which was allegedly a ‘record year.’”
“That document shows that, during that year, less than 3,500 foreign tourists of all nationalities visited the town of Devin and that, among them, there were only 400 Greek tourists and 50 Romanian tourists,” the ruling states. “Compared with the figure of 5.4 million foreign tourists who visited Bulgaria in 2014 and the populations of the member states of the European Union, in particular Greece and Romania — 10.7 million and 19.6 million inhabitants respectively on 1 January 2017 according to the Statistical Office of the European Union (Eurostat) — that data suggests that the town of Devin does not represent a major attraction for foreign tourists, particularly Greek and Romanian, and, a fortiori, is not known to the average consumer abroad.”
Meanwhile a survey of 1,007 Greeks showed that less than 1 percent “of that sample associated the word ‘devin’ with a place in Bulgaria, and less than 3 percent with any place at all.”
After noting as well that most Greek consumers live nowhere near the Bulgarian border, the ruling goes on to attack another poll that the EUIPO found more meaningful.
Citing survey results that “455,000 German consumers would perceive the word ‘devin’ as the name of a town or a town in Bulgaria,” the EUIPO Board of Appeal had called it “unrealistic to claim that none of these members of the general public from other Member States [who visit Bulgaria] would fail to familiarize themselves with Bulgarian culture, history and natural attractions, which would include the town of Devin.”
But the General Court emphasized that 455,000 consumers represent just 0.6 percent of the total German population.
“Further, the mere fact that consumers answered ‘town’ to a question in the survey is inconclusive, as it cannot be equated with the knowledge of a particular town or particular direct link with the goods at issue,” the ruling continues.
The court called it unrealistic that the average EU tourist preparing a trip to Bulgaria would familiarize himself with a relatively minor attraction such as Devin.
“In that respect, it should be noted again that the average consumer of mineral water and beverages in the European Union does not have a high degree of specialization in geography or tourism,” the ruling continues.
Before noting that the water brands Evian and Vittel both use the name of their sources in France, the court unraveled the argument that a trademark for Devin water would hinder economic efforts to develop the town’s reputation beyond the Bulgarian border.
“The general interest in preserving the availability of a geographical name such as that of the spa town of Devin can thus be protected by allowing descriptive uses of such names and by means of safeguards limiting the exclusive right of the proprietor of the contested mark, without requiring cancellation of that mark and the total suppression of the exclusive right that it confers for the goods in Class 32 covered by the registration,” the ruling states.
Located in the Rhodopes mountain range of southern Bulgaria, Devin ranks approximately 109th among Bulgarian towns in terms of population with just 7,000 inhabitants.
Though Devin ranked 68th out of the 70 most popular destinations in Bulgaria on TripAdvisor, the EUIPO Board of Appeals was indulgent of this stat by noting that hundreds of towns and villages in Bulgaria did not even make the list.
Still the General Court found the fact that Devin’s online tourist profile is “non-negligible” insufficient to establish its standing with the general public.
The EUIPO Board of Appeal also waved off the low numbers of foreign tourists reported by hotel registers in Devin, speculating that most visitors “attracted by nature will not necessarily stay in luxury hotels, but will opt for camping or bed-and-breakfast accommodation in nearby towns or villages.”
For the trademark court, “it would be extremely surprising … if tourists staying in Pamporovo (16th most popular resort in Bulgaria, according to [TripAdvisor.com]) did not venture out to visit an area of allegedly stunning natural beauty only a stone’s throw away.”
But the General Court on Thursday found such speculation irrelevant.
“The Board of Appeal’s argument does not concern that great majority of average consumers in the European Union, in particular Greeks and Romanians, who do not visit Bulgaria, but focuses on the minimal fraction of those who plan to visit that country, and above all the very small fraction of those who visit Devin or do research about it,” the ruling states.