Facts

The board game “Gazdálkodj okosan” (Budget smartly) is commercialized in Hungary; the name is not registered as a trademark, but the producer of the game had it recorded in the Registry of Copyright Works. A third party has applied for the coloured device Gazdálkodj Okosan as a mark in classes 16, 28 and 41.

The producer of the game filed opposition based on his earlier rights [Sec. 5(1)(a) TM Act]. The Hungarian Intellectual Property Office (HIPO) dismissed the opposition, holding that the graphics of the device are visually characteristic, contrary to the name used by the opponent, moreover the opponent was not able to prove that the name used for the game is sufficiently known by the public. The request of review filed by the opponent was dismissed by the Metropolitan Tribunal. The latter told that Sec. 5(2)(a) of the Trademark Act can be applied only if there is identity with the prior sign. But as the latter lacks distinctive character in respect of toys, it would not be justified to reject the application opposed. Moreover, as the opposition was not well-founded in respect of distinctiveness, it was not necessary to examine further arguments presented by the opponent, esp. as the Copyright Act contains no provisions on consent letters. The opponent filed appeal but the Metropolitan Court of Appeal dismissed this referring to the arguments explained by the Tribunal (8.Pkf.25.267/2016). Comments 1. The name of the board game is rather well-known: in Google one can find even a description of it in English. 2. The ancient saying “vigilantibus iura” is valid for this case, too: if the opponent had applied for registration of the mark “Gazdálkodj Okosan”, he would have been able to prevent registration of a similar mark at least in class 28 (toys). 3. The Trademark Act defines, i.e. limits the board of opposition procedure: its aim is a quick decision. More complicated situations are to be settled by a normal contradictory procedure in which the judge has the possibility of global appreciation. Maybe in such a procedure chances of the opponent would have been better in respect of toys (class 28). A