A coloured device mark (Figure 1) was registered in Hungary for packaging (Class 16) and fast food services (Class 43). The rights holder of a similar mark filed a cancellation procedure.
(Figure 1)
The Hungarian Intellectual Property Office (HIPO) issued a hearing notice to both parties. The post office failed to deliver the notice to the opponent, as it had moved address.
In accordance with Section 39(1) of the Trademark Act, the HIPO notified the opponent of a second hearing by way of a public notice. As the opponent failed to attend the second hearing, the HIPO cancelled the applied-for mark in Class 43, but not Class 16.
The opponent filed for review before the Metropolitan Tribunal, seeking to cancel the mark in Class 16 also.
The tribunal annulled the HIPO's decision and ordered a new procedure. It held that the HIPO should not have deemed the opponent's address to be unknown, as it had not checked the tribunal's registry of companies (even though the opponent may not have notified the tribunal of its new address).(1)
Section 80(1) of the Code of Administrative Procedure is strict: an addressee will lose out where it fails to claim any official or private registered letter within eight days.
Fortunately, Section 39(4) of the Trademark Act softens this rule somewhat with the public notice requirement.
Arguably, the tribunal was correct to examine the HIPO decision not only from a procedural perspective, but also on its merits.
Although the HIPO registry shows that the result of the second examination was the same as the first (ie, the mark was protected for services only in Class 43), the tribunal's decision is informative.
In similar situations, the HIPO should check the tribunal's registry of companies. Conversely, rights holders must advise the HIPO of any changes, particularly a change of address.
For further information on this topic please contact Alexander Vida at Danubia Patent & Law Office LLC by telephone (+36 1 411 8800) or email ([email protected]). The Danubia Patent & Law Office website can be accessed at www.danubia.hu.
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