Patents, trade marks, copyright and designs in Austria: overview
A guide to intellectual property law in Austria. The Main IPRs Q&A gives an overview of the protection and enforcement of the following IPRs: patents, trade marks, registered designs, unregistered designs, copyright and confidential information.
To compare answers across multiple jurisdictions, visit the Patents, trade marks and designs Country Q&A tool.
This Q&A is part of the PLC multi-jurisdictional guide to IP law. For a full list of jurisdictional Q&As visit www.practicallaw.com/ip-mjg.
Discoveries, scientific theories and mathematical methods.
The human body or parts of it (including DNA sequences).
Schemes, rules and methods for performing intellectual acts, for playing games or for doing business and programs for computers.
Reproduction of information.
Contrary to public policy or morality:
Cloning of human beings.
Methods of modification of the human genetic code.
Use of human embryos.
Creation and utilisation of hybrid beings.
Processes changing the genetic identity of animals which cause suffering of these animals without essential medical benefit for human beings or animals, as well as animals that are created by means of these processes.
Surgical or therapeutical methods for treatment of humans or animals, except for substances or compositions for use in any of these methods.
Plants (see Regulation 2100/94/EC on the protection of new plant varieties), animals and biological methods for breeding of these.
Opposition can be filed within four months after publication of the patent for the following reasons:
Lack of patentability.
Lack of sufficiently clear and complete disclosure of the invention.
The patent extends beyond the content of the application in the version originally filed determining the filing date.
Lack of permanent accessibility of deposit as defined by the Budapest Treaty regarding microorganisms.
Patent protection begins with publication in the Patent Gazette.
A patent enjoys protection with a maximum term of 20 years from the application date. Expiration before this term is possible, including if:
Renewal fees are not paid on time.
The owner withdrawals his right to the patent.
The patent is declared null and void.
A patent allows the patent holder to exclude others from industrially:
Producing the subject of the invention.
Putting it on the market.
Offering it for sale.
Importing or possessing it for the purposes as stated.
The patent holder may also pursue "contributory infringement".
If a third party conducts any of these acts, or such action is imminent, the patent holder can bring a claim for a cease and desist order.
No infringement by the acting of defendant.
Invalidity of patent.
No action concerning the use of respective patent.
Use within studies or experiments if this is necessary to obtain a market authorisation for pharmaceuticals.
Prior (or intermediate) use.
Right to a compulsory licence.
Claims are time-barred.
Competition law issues.
Signs incapable of protection, consisting exclusively of:
National signs (armorial bearings, flags and so on).
Official signs indicating control or warranty.
Signs of international organisations.
Refusal of registration:
Signs cannot constitute a trade mark as such.
Descriptiveness (without secondary meaning).
Generic signs (without secondary meaning).
Signs consisting exclusively of a shape which is based on the nature of goods, on technical reasons or which give the goods or services substantial value.
Contrary to public policy or morality.
Deceptive trade marks.
An opposition against a newer trade mark can be filed within three months after publication and is based on:
An older trade mark enjoying protection in Austria.
An older application for trade mark protection in Austria.
Oppositions can only be based on the relative grounds of refusal due to:
Double identity (identity of signs and goods or services).
Similarity of signs and/or goods or services which result a risk of confusion.
There is no opposition available based on well-known trade marks.
Infringement of exploitation rights covers:
Use of an identical sign for identical goods or services.
Use of an identical or similar sign for identical goods or services if there is a likelihood of confusion.
Use of a sign which is identical or similar to a trade mark having a reputation even for non-similar goods or services if this use takes unfair advantage of or is detrimental to the distinctive character or the repute of a trade mark.
Use of a sign includes (non-exhaustive):
Affixing the sign on products.
Doing the following in relation to products under the sign:
putting on the market;
Using the sign on business papers.
If any such act happens or is imminent, the IPR holder can bring an infringement action for a cease and desist order.
Non-identical or no confusion over similarity of signs.
No similarity of goods and services.
No action on commercial scale.
No use as a trade mark.
Descriptive or non-distinctive sign.
Registration in bad faith.
Exhaustion of trade mark rights.
Consent to trade mark use.
Legitimate use, including:
in comparative advertising;
for indication of own name, kind, quality, purpose, value, and so on of a product;
purpose of a product as spare part.
Claims are time-bound.
Works are protected if they are original intellectual creations in literature, musical art, visual art and cinema. Essential elements for copyright protection are:
The creation itself.
That the individual character of the creator is reflected in the work.
Its correlation to the above genres.
Neither the author's intention to create a work which is protected by copyright nor its registration is necessary.
Copyright arises automatically with the act of creation of the work. Registration of copyright is not required and not provided for by law.
The Ministry of Justice keeps a register which provides authors (or their heirs) a possibility to claim creatorship for an anonymously created or published work. This register is of marginal relevance.
Infringement of exploitation rights covers:
The right of the first table of content.
The right to adapt and translate the word.
Lending and renting.
Performance or display to the public.
The right to make available to the public.
If any such act of a third party without consent of the author happened or is imminent, the author can bring an infringement action. In addition to these exploitation rights, moral rights can also be claimed.
See Question 17.
Applications for national designs must be submitted to the Patent Office (www.patentamt.at). The Patent Office provides standard forms for applications and a short guidance on the application requirements.
A registered design confers on its holder the exclusive right to use it and to prevent any third party from using it without the holder's consent. This covers in particular,
Putting on the market.
Importing or exporting.
Using a product in which the design is incorporated or to which it is applied.
Stocking such a product for those purposes.
The scope of design protection covers not only identical designs but also those designs which do not effect a different overall impression.
See Question 7.
Even without registration, new designs with individual character can enjoy protection for three years as from the date on which the design was first made available to the public within the Community (Article 11, Regulation (EC) 6/2002 on Community designs (Community Designs Regulation)).
Further, unregistered designs (for example, used for a company, its products or business papers) can enjoy protection based on the Article 9(3), Unfair Competition Act as far as they acquired distinctiveness through secondary meaning.
See Question 35.
The Unfair Competition Law protects secret information if (Articles 11 to 13, Unfair Competition Act):
Employees come to know about them and disclose them to others during their employment.
Third parties come to know about these secrets (by employees, by breach of law or by breach of morality) and use them for a competitive purpose or disclose them to others.
Samples or technical specifications are used within the scope of business or disclosed (in case this information has been forwarded to the offender within the course of business).
Any other confidential information can only be protected through contractual obligations.
See Question 40.
The regulatory authority
Austrian Patent Office (Österreichisches Patentamt)
Main areas of responsibility. Application and administration of patents, design and trade mark rights.
Guidance on application procedure. The Patent Office provides standard forms for applications and a short guidance on the application requirements.
Fiebinger Polak Leon Rechtsanwälte
Qualified. Austria (Vienna), 2003
Areas of practice. Patent law; trade mark law; copyright and design law; product piracy; unfair competition law; licensing and publishing agreements; pharmaceutical regulatory issues.
- Acting for Merck & Co Inc in patent infringement proceedings against several generics based on a patent regarding a new pharmaceutical use of a substance.
- Acting for a world-leading provider of wireless technology and services concerning IP and IT issues with respect to projects in Austria (for example, agreements with various universities in research and development projects for augmented reality applications).
For more details of recent transactions, publications, and so on, see full PLC Which lawyer? profile here.
Fiebinger Polak Leon Rechtsanwälte
Qualified. Not yet admitted in Austria
Areas of practice. Patent law; trade mark law; copyright and design law; product piracy; unfair competition law; licensing and publishing agreements; IP law; general business law; commercial law.
An associate at Fiebinger Polak Leon Attorneys-at-Law, Kristina studied at the University of Constance and graduated from the University of Vienna School of Law in 2009.