Undistributed advertising material is not evidence of use

In Manpower Inc v Manpower Temporar Personal GmbH (Pfv.IV.20.556/2001), the Hungarian Supreme Court has upheld a decision of the Metropolitan Court of Appeal, ruling that the defendant's mark IR588266 be cancelled on the basis of non-use. The Supreme Court found that Manpower Temporar's advertising material did not constitute evidence of use because there was no proof that it had been distributed.

Manpower, the well-known provider of temporary staff, requested the cancellation of the Hungarian registration of the mark IR588266 owned by Temporar, an Austrian company, on the basis of non-use. The Hungarian Patent Office cancelled the mark because Temporar did not prove it had used the trademark for over five years, nor did it submit excuses for not using it. Temporar appealed.

The Metropolitan Court of Appeal upheld the cancellation. It found that the advertising material submitted by Temporar did not constitute evidence of use because the invoices certifying that multiple copies had been made only proved that the material had been produced, not that it had been distributed. Temporar appealed to the Supreme Court.

The Supreme Court affirmed the appellate court decision. It found that Temporar's request for re-examination was not well-founded under Article 275/A(1) of the Code of Civil Procedure because the advertising material had no date and there was no evidence that it had been distributed.

Gabriella Sasvári, SBG & K Patent and Law Office, Budapest