Procedure
Hungary
General infringement proceedings
Types of infringement proceedings:
- Cease and desist letter: Before initiating preliminary injunction or main proceedings, it is common practice for the trade mark owner to send a cease and desist letter to the opposing party, requesting that they cease and desist from the infringement.
- Preliminary injunction proceedings: The trade mark owner can file a request for a preliminary injunction to the competent court even before filing a trade mark infringement action.
- Main proceedings: The main proceedings can be initiated after, simultaneously with, or without filing a request for a preliminary injunction. The trade mark proprietor can request the court to declare that the infringement has been committed, to order the infringer to cease and desist from the infringement or the imminent threat thereof, to provide information about the goods or services concerned by the infringement, or to provide reparation, to order the infringer to return the enrichment of infringement, to order the seizure, the recall, the destruction etc of the infringing goods.
Procedure and appeals
- First instance: Preliminary injunction requests and trade mark infringement actions have to be brought before the Metropolitan Court of Justice (Fővárosi Törvényszék) which has exclusive jurisdiction over these matters.
- Court of Appeal: First instance decisions may be appealed to the Metropolitan Court of Appeal (Fővárosi Ítélőtábla).
Means of proof and burden of proof
Any means of proof is admissible in the main proceedings (eg witness testimony, expert opinion). In preliminary injunction proceedings the taking of evidence is generally not allowed, as only a sufficient level of certainty is required. The burden of proof typically lies with the trade mark proprietor.
(No) discovery
There is no discovery process in Hungarian trade mark law, but the trade mark owner can claim that the evidence necessary to prove the infringement is in the possession of the opposing party and can request the court to order its production. The court can draw adverse inferences if the opposing party does not comply with such an order.
Time to judgment
According to statutory law, the court must decide on the application for preliminary injunction within 15 days. The Metropolitan Court of Appeal must decide on the appealed preliminary injunction within 15 days. However, in practice, the procedure takes at least one to two months in both the first and second instance because of the court's official acts and internal administration.
Hungarian trade mark courts generally have a heavy case load, but the length of proceedings also depends on the complexity of the case, especially if the court is conducting an evidentiary procedure (eg expert evidence). The time to first instance judgment in main proceedings can take up to two to three years.
(No) discovery
There is no discovery process in Hungarian trade mark law, but the trade mark owner can claim that the evidence necessary to prove the infringement is in the possession of the opposing party and can request the court to order its production. The court can draw adverse inferences if the opposing party does not comply with such an order.
Time to judgment
According to statutory law, the court must decide on the application for preliminary injunction within 15 days. The Metropolitan Court of Appeal must decide on the appealed preliminary injunction within 15 days. However, in practice, the procedure takes at least one to two months in both the first and second instance because of the court's official acts and internal administration.
Hungarian trade mark courts generally have a heavy case load, but the length of proceedings also depends on the complexity of the case, especially if the court is conducting an evidentiary procedure (eg expert evidence). The time to first instance judgment in main proceedings can take up to two to three years.
Claiming legal costs and securities
- The court will order the unsuccessful party to pay the other party's costs, including attorneys’ fees and court fees incurred with the proceedings.
- In practice, the courts may reduce the claim for the attorneys' fees if they consider it excessive.