Facts

The mark MATIAS was registered for wines. G. Mathiasz, who’s great grandfather, J. Mathiasz was a famous grape breeder (winemaker) applied for the cancellation of the mark

The Hungarian Intellectual Property Office cancelled the mark. The Office held that the mark is similar to the family name Mathiasz and the grape breeder activity of J. Mathiasz (1838 – 1921) is widely known and the applicant seeks the reservation of the intellectual heritage of his great grandfather. The family name Mathiasz is not frequent, moreover rare.

The holder of the mark represented by the Sár Law Office filed a request of review with the Metropolitan Tribunal. The latter changed the decision of the HIPO and rejected the application for cancellation. The Tribunal said that as J. Mathiasz is no more alive, only his reminiscence can be infringed as provided by Sec. 85(3) of the Civil Code (1959). Use of a mark similar to the name of J. Mathiasz, even if the public may associate it with J. Mathiasz is not detrimental to the personality rights. The applicant ought to have provided supplemental evidence in respect of detriment of personality rights, e.g. that the quality of the wine of the trademark holder is not good enough. The evidence filed led to the opposite: the holder’s wines are good, some of them were even awarded. The holder of the mark MATIAS made considerable marketing in favour of his wines and there was no information that the public associated his mark with J. Mathiasz.

The applicant filed an appeal but this was rejected by the Metropolitan Court of Appeal. It was said that the right to reputation can be enforced only personally. Moreover, the applicant tries to enforce the personality rights of his great grandfather, and he has not proved such supplemental facts that the mark or its use would be detrimental to the personality right of the famous winemaker J. Mathiasz. The Court of Appeal agreed in this respect with the Tribunal. (8.Pkf.25.825/2015)

Comments

1. The success of J. Mathiasz is even known worldwide by professionals (see Wikipedia) and grapes bred by him like ‘Csabagyöngye’ or ‘Szőlőskertek királynője’ are best known.

2. I must say that I found (likeable) the applicant’s persistent behaviour to save the reputation and memory of his famous great grandfather, whom probably he did not know personally. It is not accidental that the HIPO decided in favour of the holder. But cases ought to be decided based on statutory law and not by ethical or emotional grounds.

3. The Tribunal as well as the Court of Appeal said that personality rights, as reputation can be exerted only personally. This is a basic rule of civil law.

4. The application of the rule relating to personality right is more interesting, in this respect of which both instances required a supplemental element for stating the infringement. The Tribunal referred as an example to a wine of bad quality. Though the referred Sec. 85(3) of the Civil Code does not provide for such restriction but we can take into consideration the special rule laid down in Sec. 4(1)(c) of the Trademark Act which provides on “unfair advantage”. As a result, the interpretation given by the Tribunal and the Court of Appeal in their decisions is in line with the special rule on exploitation of reputation laid down in Sec 4(1)(c) of the Trademark Act, which is in correspondence with the rule of Article 4(3) of the TM Directive.

5. It seems that the motivation of the holder, why she chose a mark closely similar to the reputed name, was not clarified either, though in terms of trademark law this question has no importance.