As it is usually difficult to prove the existence of bad faith in respect of trademarks, case law is often reluctant to apply this prohibition. This was the case with a recent Metropolitan Tribunal case. Fortunately, the Metropolitan Court of Appeal was more flexible in this respect and interpreted the facts concerning bad faith alongside another issue, thus leading to different interpretations of the concept of due cause by the tribunal and the court.
The owner of the international trademark ELEVEN PARIS filed for an extension of protection in Hungary, which the Hungarian Intellectual Property Office (HIPO) refused on the basis that the inclusion of the geographical name Paris could be misleading. The Metropolitan Tribunal annulled the HIPO's decision and ordered it to re-examine the application. The tribunal's obiter dicta on globalisation and its consequences for the use of geographical names in trademarks are notable.
A recent Metropolitan Court of Appeal case demonstrates that the determination of likelihood of confusion is often a sensitive issue. This case is notable, as the Hungarian Intellectual Property (HIPO) and the Metropolitan Tribunal came to different conclusions after examining the same facts. Although the HIPO rejected the opposition – holding that the visual and phonetic similarities between the marks in question were weak – the tribunal (and subsequently the court) disagreed.
A number of amendments to the Law on Utility Models will take effect in January 2018. The most substantial amendments are the official confirmation of simultaneous patent and utility model protection and the introduction of an option to request an opinion from the Hungarian Intellectual Property Office on novelty and inventive step. These opinions can be used in infringement cases to prevent proceedings from being suspended when a utility model's novelty or inventive step has been called into question.
In a recent case involving the EU mark THE BODYSHOP, the Hungarian Intellectual Property Office considered all of the arguments for opposition – namely, the likelihood of confusion and the prior mark's reputation. However, on review, the Metropolitan Tribunal found this to be superfluous, explaining that if a likelihood of confusion exists, reference to reputation is unnecessary.
The Hungarian Intellectual Property Office (HIPO) recently approved a request for the cancellation of a three-dimensional mark on the grounds of lack of distinctiveness and unlawfulness. While the Metropolitan Tribunal confirmed the lack of distinctiveness and rejected the request for review, it disagreed with the HIPO with respect to the mark's unlawfulness on the basis of the Competition Act. The case is notable, as the tribunal seldom deals so extensively with competition law in a trademark case.
The Hungarian Intellectual Property Office (HIPO) recently granted an opposition action in respect of the likelihood of confusion, but rejected it in respect of the prior unregistered mark's reputation. On review, the Metropolitan Tribunal agreed with HIPO in respect of the likelihood of confusion, but found that it had failed to consider the claim on the basis of copyright. In this respect, the tribunal stated that the applied-for mark was a direct copy of the prior mark, considering that the parties were competitors.
In a recent case, a cancellation procedure was filed based on lack of use, as the device mark had been used in conjunction with other marks owned by the producers of the goods to which it was attached. While the Hungarian Intellectual Property Office cancelled the mark, the Court of Appeal ultimately amended this decision, rejecting the opposition and maintaining protection of the mark in certain classes.
The Metropolitan Tribunal recently held that the Hungarian Intellectual Property Office had erred in considering that the average Hungarian consumer could understand, and would therefore not confuse, the Latin term 'vita' and the Italian term 'civita'. While this statement is convincing, the final result (ie, likelihood of confusion) is somewhat problematic.
The board game Gazdálkodj okosan is commercialised in Hungary; the name is not registered as a trademark, but is recorded in the Registry of Copyright Works. The Metropolitan Court of Appeal recently upheld the Hungarian Intellectual Property Office's decision to grant a third-party application to register the colour device mark GAZDÁLKODJ OKOSAN!, holding that as the prior sign lacked a distinctive character in respect of toys, it would be unjustified to reject the opposed application.
Following the Hungarian Intellectual Property Office's (HIPO's) refusal of a mark registered in Classes 32 and 33, the applicant filed for review with the Metropolitan Tribunal. The review was rejected with regard to both classes based on the likelihood of confusion. However, the Metropolitan Court of Appeal found that the request for review had been filed only in respect of the HIPO's refusal to grant protection in Class 33. As such, the tribunal's decision exceeded the request.
The questions of what constitutes trademark imitation and whether there is a likelihood of confusion should always be considered on a case-by-case basis. In a recent case, although the consideration of the Metropolitan Tribunal and the Metropolitan Court of Appeal differed in respect of two points, the final result was the same: there was no likelihood of confusion.
In a recent case, the Hungarian Intellectual Property Office, the Metropolitan Tribunal and the Metropolitan Court of Appeal unsurprisingly found the opposition of a trademark which was based on the similarity of one letter to be exaggerated. However, what was surprising was the court's ruling that, in light of case law, the special protection available for reputed trademarks does not apply where there is no likelihood of confusion.
An application for the device mark EVOBANK was filed in Class 36. The rights holder of the European device mark EVO, which was protected in Classes 35, 36, 38 and 45, filed an opposition action. The Hungarian Intellectual Property Office (HIPO) allowed the opposition on the basis of – among other things – likelihood of confusion. The Metropolitan Tribunal recently agreed with the HIPO decision, holding that bank customers are particularly attentive as banking services often involve their property.
The Metropolitan Court of Appeal recently upheld the Metropolitan Tribunal's rejection of a cancellation action regarding a trademark that was similar to the surname of the applicant's famous great-grandfather. The court held that the right to protect an individual's reputation can be enforced only by the individual in question. Further, in trying to enforce his great-grandfather's personality rights, the applicant failed to prove that the mark or its use would be detrimental to his reputation.
The Metropolitan Court of Appeal recently overturned a Metropolitan Tribunal decision regarding the use of a well-known winemaker's surname in a device mark. The case was complex, as the applicant had obtained the consent of one member of the winemaker's family who was in the same profession, but not that of the winemaker. Further, there was a conflict between the law regarding property and the protection of vested rights and the law regarding the protection of someone's identity.
The Metropolitan Tribunal recently annulled a Hungarian Intellectual Property Office decision which refused a French rights holder's application to extend protection of its international MANHATTAN SUPERSIZE SEDUCTIVE EYES trademark for eye make-up to Hungary. The tribunal held that the fact that an applicant's nationality does not conform with the name used in its mark is not, in itself, sufficient grounds to refuse protection if there is no risk of confusion.
In a recent Hungarian Intellectual Property Office (HIPO) decision, a hearing notice could not be delivered to the opponent of an applied-for mark as it had moved address. The HIPO notified the opponent of a second hearing by way of a public notice, but the opponent failed to attend and the HIPO cancelled the mark only in Class 43. However, the Metropolitan Tribunal annulled the HIPO's decision on the basis that it had failed to check the tribunal's Registry of Companies for the opponent's address.
The holder of the EU trademark MULTIBLOC filed an opposition action against the trademark MULTI-BOX. The Hungarian Intellectual Property Office rejected the opposition on the grounds that the 'multi' element of the word composition was not distinctive and that, as a result, there was no likelihood of confusion. The Metropolitan Tribunal and the Metropolitan Court of Appeal both upheld the decision.
The Hungarian Intellectual Property Office revoked an international device mark on the grounds of non-use as the rights holder – who was the legal successor of the original proprietor – failed to provide evidence of use after the mark's transfer date. Although this decision was correct in respect of procedural law, the Metropolitan Tribunal annulled the revocation on the merits of the case; its ruling was recently upheld by the Metropolitan Court of Appeal.