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05 February 2018
An application was filed to register a device mark featuring the term 'DRONEHUNGARY' (Figure 1) for services in Classes 35, 41 and 42 (ie, publicity, photos, films and geological exploration).
The Hungarian Intellectual Property Office (HIPO) rejected the application, holding that the mark's wording was descriptive.
The applicant requested a review by the Metropolitan Tribunal, which was granted.
The tribunal held that a word composition is descriptive only if it is grammatically correct. Conversely, if a word composition is unusual, it will not constitute a familiar expression which describes the characteristics of goods (3.Pk.23.514/2016). This reasoning was based on the European Court of Justice's (ECJ's) decision in BABY-DRY (C-383/99).
Neither the HIPO nor the tribunal considered the device element of the application, as this was descriptive.
The above case is not the first time that the HIPO has been more rigorous than the tribunal in assessing an application, especially with regard to a mark's descriptiveness.
The tribunal's reference to the ECJ's famous BABY-DRY judgment is positive and sets an important precedent. The judgment was particularly relevant to this case, in which an important part of the Hungarian public could understand the mark's English wording.
Similarly to the ECJ, the Metropolitan Tribunal examined the word combination using the rules of English grammar, which – for the tribunal of an EU member state – is arguably a logical decision.
Fortunately for the applicant, this case had a happy ending: following a new procedure, the HIPO registered the mark.
For further information on this topic please contact Alexander Vida at Danubia Patent & Law Office LLC by telephone (+36 1 411 8800) or email (firstname.lastname@example.org). The Danubia Patent & Law Office website can be accessed at www.danubia.hu.
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