Legal consequences of past use of a non-registered mark


Michael Lantos and Dr Judit Lantos

The requirement of genuine use is assessed strictly in both national and European trademark practice. Use without registration can also provide certain rights to the users.

In two recent Hungarian landmark cases the actual earlier uses of respective non-registered marks have proved to be key components before the courts.

According to Article 8 (5) of the Community Trade Mark Regulation (CTMR) in an opposition proceeding based on an earlier trademark, the opposed mark shall not be registered where it is identical with, or similar to the earlier trademark, where this trademark has a reputation in the Community and where the use without due cause of the mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trademark.

In both cases respective opposition proceedings were launched against fairly recent trademark applications, where the applicants had actually used their marks years before the filing dates of their corresponding marks.

Trademark, CTMR, Supreme Court, non-registered, Hungarian IPO,