Supreme Court allows publication of judgment online

In a case involving German designer-clothing company Hugo Boss as plaintiff (4 Ob 174/02w), the Austrian Supreme Court has ruled that a judgment in the plaintiff's favour concerning unfair competition and trademark infringement can be published on the defendant's website.

Hugo Boss, which owns the international trademark BOSS, sued a producer and distributor of Boss-branded cigarettes for unfair competition and trademark infringement based on consumer confusion.

The Supreme Court ruled in Hugo Boss's favour. As part of the court's award, it stated that Hugo Boss is entitled to have the judgment published on the defendant's website. The court also set out certain conditions that must be met if a judgment is to be published on a defendant's site.

First, there must be a designated period during which the judgment will appear online. This timeframe should not be confused with the period during which the infringing information was shown on the website. Assuming that users who are interested in the content of a website will visit it regularly at fairly short intervals, a period of 30 days seems appropriate.

Second, the judgment must appear in the form of a pop-up frame that opens automatically when a user visits the site on which the products and/or services of the defendant are advertised. The size of the pop-up frame should be one-quarter of the screen, the names of the parties should appear in bold, and the type and size of the font should be that normally used in printed notices of judgments.

Third, the plaintiff should obtain the defendant's assistance in publishing the judgment on its website. The defendant is obliged to take all the necessary steps to make online publication possible without undue delay.

Dieter Hauck and Barbara Kurz, Preslmayr & Partners, Vienna