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22 July 2013
Raba Holding is the registered owner of the RABA mark used by all three of its constituent companies, whose trade names contain the word 'Raba'. An Austrian company whose name also contains the word 'Raba' filed a request for revocation.
As evidence of use of the RABA mark, Raba Holding submitted:
As a result, the Hungarian Intellectual Property Office rejected the request for revocation in Classes 7 and 12.
The Austrian company filed a request for review, which the Metropolitan Tribunal dismissed. The tribunal held that the submitted evidence constituted a closed system, and that the separate documents could not individually prove genuine use. However, by considering the documents as a whole, the tribunal concluded that it would not be fitting to reject the assertion of generic use. Commercial partners encountered the RABA mark on letterheads and invoices; moreover, in 2010 Raba Holding was the most successful company in Hungary.
The applicant appealed to the Metropolitan Court of Appeal, which upheld the decision. The court agreed with the tribunal's opinion, adding that Raba Holding used several RABA marks with graphic elements that differed only in ways that did not affect the mark's distinctive character. Raba Holding's use of several RABA logos confirmed their genuineness in the eyes of consumers, who are specialists. As a result, the court upheld the tribunal's holding that use of one of the marks supported use of the others. The tribunal considered the correlation of the submitted documents in accordance with Section 206(1) of the Code of Civil Procedure and held that the documents constituted a closed logic chain (8.Pkf.25.297/2012).
RABA is one of the oldest and best-known Hungarian marks for vehicles. As a result of privatisation, the former state enterprise continues operations under the structure of a holding company comprising three constituent companies, each of which uses the RABA logo with different graphics. Only the mark of the holding was the subject of the dispute. After an exhaustive study of the documents filed by Raba Holding, all three forums held that genuine use took place.
The decisions at all three instances were in line with the European Court of Justice decision in OMEL v ONEL (C-149/11), which clarified the criteria for genuine use by holding that the courts must take into account "all relevant facts and circumstances". Notably, the Metropolitan Court of Appeal issued its decision in this case six months before OMEL.
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