The coloured device mark is registered for sacs for wrapping (class 16) and for fast food restaurants (class 43) for a Hungarian holder. Cancellation was requested
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Then the Hungarian Intellectual Property Office invited the parties for a hearing. On the receipt of service the post office noted “moved”.
In conformity with Sec. 39 (1) of the TM Act the Office invited the holder by publication to the second hearing. As the holder appeared neither at the second hearing, the Office cancelled the mark in class 43 but not in class 16.
The applicant requested review with the Tribunal, namely to cancel class 16 as well.
The Tribunal annulled the decision of the Office and ordered a new procedure. It held that the seat of the holder ought not to be considered as unknown, as from the Registry of Companies the Office would have stated it, even if the holder omitted to have his actual address recorded (3.Pk.21.201/2015).
Sec. 80(1) of the Code of Administrative Procedure is hard: if the addressee does not claim any official or private registered letter within 8 days, he is “loser”. Fortunately Sec. 39 (4) of the TM Act softens somewhat this rule, with the disposition on publication.
I believe the Tribunal was right, examining the decision of the Office not only from procedural view but also in the merits.
The Registry of the Office shows now that the result of the second examination was identical: class 43 does not appear, only class 16 is protected. The Tribunal’s decision is however instructive.
The lesson for the Office is that in similar situations it is advisable to click on the home page of the Tribunal’s Registry of Companies.
The lesson for all holders is that they need to have the changes recorded with the Hungarian Intellectual Property Office, esp. change of address.