A Hungarian applicant filed a trademark application for the term OKTOBERFEST for malt beer and beer in Class 32 and services in Classes 41 and 43.

The Hungarian Intellectual Property Office (HIPO) rejected the application on the basis of its lack of distinctiveness, holding that the applied-for mark was descriptive. The HIPO held that consumers associate the term with a place of entertainment where beer is consumed. The decision was supported by the applicant's statement, in which he wrote that his beer – which was sold in Hungary – conformed with the norms of the Munich beer festival. The applicant requested a review of the HIPO decision.

The Metropolitan Tribunal rejected the review request. It held that even an average consumer with no knowledge of the German language would know that the term relates to beer, beer consumption and related services. As a result, the applied-for mark was a descriptive term connected to the popular Munich festival and therefore referred to a certain quality of beer.

The applicant appealed the decision, which was also rejected. The Metropolitan Court of Appeal held that Oktoberfest has taken place annually since the early 19th century and is well known in Europe and globally. Even Hungarians who do not speak German associate the term with beer. A direct link can also be made in respect of organising beer festivals (Class 41) and providing food and beer (Class 43). In light of this, the court held that the list of goods was descriptive (8.Pkf.27.284/2013).

Comment

Oktoberfest has taken place anually at Theresienwiese in Munich since 1810, with only a few exceptions (eg, because of war). In the past years the annual number of visitors has been approximately 6 million – the majority of whom are from Italy or the United States. During its three-week duration, Oktoberfest serves 600,000 hectolitres of beer and 50,000 pieces of fried chicken. It is the biggest feast of its kind in Europe; similar events occur only in Canada and Brazil.

While all three decisions held that the applied-for mark was descriptive, it would also be misleading for a Hungarian brewery to use the reputed German festival's name for beer produced in Hungary. This might have been an even stronger argument for the application's rejection.

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