(Reference for a preliminary ruling– Article99 of the Rules of Procedure of the Court of Justice– Quality schemes for agricultural products and foodstuffs– Regulation (EU) No1151/2012

19On 12February 1999, Konservinvest, a company with its administrative and registered office in Bulgaria, obtained registration of the complex trade mark ‘K Konservinvest Parvomayska lyutenitsa’ at the Patent Office of the Republic of Bulgaria (‘the Office’) for the designation of the product ‘lyutenitsa’. On 3May 2005, it also obtained registration of the composite mark ‘Parvomayska lyutenitsa Rachenitsa’, applied for on 15May 2003, to designate the same product. For those two marks, the elements ‘parvomayska lyutenitsa’ are not protected.

20By decision of the President of the Office of 3July 2013, Bulkons, a company which also has its registered office and administrative office in Bulgaria, under the ZMGO, which was then in force, was registered as the user of the geographical indication ‘Lyutenitsa Parvomay’ (‘the geographical indication at issue’), designating the product ‘lyutenitsa’, Parvomay being a Bulgarian municipality. The application for registration of that geographical indication had been filed by Bulkons on 14March 2013.

21Konservinvest brought an action before the administrative courts for annulment of that decision, on the ground that the President of the Office was not competent to register a geographical indication relating to an agricultural product, since such a registration was governed by Regulation No1151/2012 and was possible only at EU level, in accordance with the procedure laid down in that regulation. By judgment of 12July 2017, the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) dismissed that action, taking the view that that regulation did not apply to the dispute since the contested registration did not seek to obtain the protection granted by it.

22In addition, Bulkons brought joint actions before the Sofiyski gradski sad (Sofia City Court, Bulgaria) against Konservinvest under Article76(1), subparagraphs1 to 3, read in conjunction with, inter alia, Article76(1), subparagraph4, and Article76(2), subparagraph3, of the ZMGO. By those decisions, it sought, inter alia, a declaration that its rights over the geographical indication at issue had been infringed by Konservinvest’s use of a number of commercial trade marks, including those identified in paragraph19 of the present order, to designate the product ‘lyutenitsa’; that Konservinvest be ordered to cease the infringement and to pay it compensation for the damage suffered in the amount of 636284.16 Bulgarian leva (BGN) (approximately EUR325000), and to order the seizure and destruction (‘the removal from circulation’) of the products constituting an infringement.

23By judgment of 30November 2017, the Sofiyski gradski sad (Sofia City Court) dismissed those actions on the ground that they related to a product to which Regulation No1151/2012 directly applies and that that regulation requires the geographical names of agricultural products and foodstuffs to be registered with the Commission.

24Bulkons’ appeal against that judgment was upheld by the Sofiyski Apelativen sad (Court of Appeal, Sofia, Bulgaria), by judgment of 28February 2019, which upheld the actions brought by that company in their entirety. That court held that those actions were admissible, since Article8(1) of the transitional and final provisions of the Law amending and supplementing the ZMGO was not applicable to the dispute before it, and well founded, since the ZMGO and Regulation No1151/2012 governed different relationships and guaranteed parallel protection of different rights.

25Konservinvest brought an appeal on a point of law against that judgment before the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria), the referring court. The referring court states that it must assess the admissibility of Bulkons’ actions and that, to that end, it must determine whether the geographical indication at issue is protected under Bulgarian law.

26In that regard, it states that, in accordance with that legislation, the registration of a geographical indication with the Office, including for agricultural products and foodstuffs, affords it national protection allowing for a judicial sanction if use of that indication is made by an unauthorised person. That geographical indication ensures consumers of the high quality of the goods designated by it and describes the specific characteristics thereof. It also creates an obstacle to a deterioration in that quality resulting from production of those goods by unregistered producers.

27In the light of developments in international and EU legislation on the protection of geographical names of agricultural products and foodstuffs whose quality and unique character are associated with certain regions of the European Union, and taking into account Article9 and recitals15 and 24 of Regulation No1151/2012, the referring court considers it possible that the registration and legal protection of those products may be precluded at national level. It takes the view, however, that where the dispute is between local producers of a single agricultural product concerning a geographical indication which has obtained only national registration and where the infringements at issue occur in that Member State, the possibility of registering agricultural products and foodstuffs falling within the scope of Regulation No1151/2012 only at national level and of benefiting from specific protection only within that Member State is not expressly precluded by EU law.

28In those circumstances, the Varhoven kasatsionen sad (Supreme Court of Cassation) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does Article9 of [Regulation No1151/2012] allow, outside the cases of transitional protection provided for in that provision, a national system for the registration and protection of geographical indications for agricultural products and foodstuffs covered by that regulation, and does that provision leave Member States free to apply at national level other rules that are applicable in parallel (similar to the parallel system for trade marks) in order to settle legal disputes concerning infringements of the right to such a geographical indication between local traders who produce and market agricultural products and foodstuffs covered by [Regulation No1151/2012] within the Member State in which the geographical indication was registered?’