Austria

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26 Mar 2018

Supreme Court: use of similar packaging for chocolate treats constitutes unlawful imitation marketing

Austria's Supreme Court has issued its decision in an imitation marketing dispute involving the <em>Mozartkugel</em>, a famous chocolate treat.

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24 Oct 2017

Personality rights versus right to freedom of artistic expression

The Austrian Supreme Court recently expressed its opinion on the extent to which a politician is entitled to his or her personality rights. In this case, the plaintiff was the long-serving Austrian minister of finance who took action against the use of his initials ‘KHG’ for a board game intended to raise public awareness of corruption.

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18 May 2017

Procedures and strategies for anti-counterfeiting: Austria

The latest statistics for 2015 show that the number of seizures and detentions of counterfeit goods – following consecutive drops since 2012 down to 1,293 in 2014, thanks to increased information campaigns launched by Austrian Customs – rose again, doubling to 2,771. However, the number of articles seized dropped from 195,689 in 2014 to 44,832 in 2015.

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29 Mar 2017

Trademark procedures and strategies: Austria

In Austria, the national legal framework for trademarks is set out in the Trademark Protection Act (260/1970, Federal Law Gazette). Its provisions implement the EU Trademark Directive (89/104/EEC), which aimed to partially harmonise the national trademark laws of EU member states. The EU Customs Code and the Austrian Law against Product Piracy also apply.

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Enforcement and Litigation

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18 Sep 2012

Supreme Court's Red Bull decision: the judge as a statistics expert?

The Austrian Supreme Court has issued an interesting - and controversial - decision in a case involving Red Bull GmbH's blue and silver colour mark. Among other things, the court, referring to the case law of the ECJ, held that a demoscopic expert opinion must be obtained only in exceptional cases - that is, where there is doubt as to the degree of reputation of a mark.

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3 Oct 2007

Infringement must be imminent to obtain injunction

The Supreme Court has clarified that an applicant for an injunction
to prevent an alleged infringement must show that an infringing act is imminent.
The court concluded that the fact that a third party holds a registration for
a purportedly similar mark does not entitle the applicant to an injunction where
no use of the third-party mark has been made or is likely to be made in the
near future.

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25 May 2007

Keyword advertiser liable for trademark infringement

The Austrian Supreme Court has held a keyword advertiser liable for
trademark infringement because its sponsored link appeared under the name of
another party's trademark and before the link to the mark owner's website. In
the only other keying case before it to date, the court held that Google was
not liable for trademark infringement.

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6 Jul 2006

Supreme Court reverses case law on label mark protection

The Supreme Court of Austria has rejected an application by the maker
of Lucky Strike cigarettes for a preliminary injunction against a competitor
that uses labels featuring a bullseye graphic element. The court found that
the difference in the word elements of the labels overcame any similarity between
the graphic elements. In doing so, the court appears to have reversed its own
case law in respect of the protection of label marks.

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Online

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24 Jan 2011

Supreme Court refers questions to ECJ on jurisdiction in keyword cases

The Supreme Court has referred questions to the ECJ for a preliminary ruling in a case involving the use of the Austrian trademark WINTERSTEIGER as a keyword by a German advertiser on a German search engine. At issue was whether the Austrian courts had jurisdiction over the case.

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9 Sep 2003

Media company wins battle for 'rtl.at'

The Supreme Court has ordered the transfer of 'rtl.at' to media company
RTL Group. The court rejected the defendant's argument that he had a right to
register the domain name because the letters 'R', 'T' and 'L' refer to the initials
of his personal name, stating that the media company's name and trademarks require
a higher level of protection.

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28 May 2003

Disputes involving ccTLDs can now be settled out of court

After extensive consultation with the Austrian internet community,
NIC.at - the registry for '.at' domain names - has launched a dispute resolution
system to handle clashes over country-code top-level domain names. The new service
is designed to provide a quick, cost-effective alternative to legal proceedings.

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27 Feb 2003

AMS mark owner loses 'ams.at' domain name dispute

In <i>Arbeitsmarktservice v Auto- und Motoren-Service GmbH</i>, the
Austrian Supreme Court has refused to order the transfer of 'ams.at' to the
plaintiff. The court held that both parties have legitimate rights to use the
domain name but the defendant has priority because it registered it first.

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Portfolio Management

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18 Sep 2015

Austria

In Austria, trademarks are governed by the Trademark Protection Act (BGBl 260/1970), which implements the EU Trademarks Directive (89/104/EEC).

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8 Dec 2009

New options for mark owners as Austria adopts opposition procedure

Brand owners in Austria will soon be able to oppose junior marks, following the adoption of the jurisdiction’s first opposition procedure.

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19 Nov 2007

WE WILL ROCK YOU is not descriptive, says Supreme Court

In <i>MCP Sound & Media v WWRY Musical GmbH & Co KG</i>, the
Supreme Court has overturned a decision of the Vienna Court of Appeals and
held that the Community trademark WE WILL ROCK YOU is valid. Among other things,
the court found that the mark was not descriptive under Article 7(1)(c) of the
Community Trademark Regulation.

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26 Jun 2006

FIREKILLER registration extinguished

The Austrian Supreme Court has ruled against the owner of the registered
Austrian trademark FIREKILLER on the grounds that it was acting in bad faith
when it applied to register the trademark. The court further stated that the
mark FIREKILLER is descriptive and not distinctive, and thus could not be protected.

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Trademark law

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29 Mar 2006

Non-use of German mark stops enforcement of international mark

The Supreme Court has dismissed an application for an interim injunction
filed by the owner of an international mark designating Austria. The court reasoned
that the owner had not provided evidence that it had used the German mark that
served as the basis for its international registration during the five years
preceding the application for the injunction and, therefore, its registration
did not entitle it to enforce its rights.

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6 May 2003

Supreme Court allows publication of judgment online

In a case involving Hugo Boss as plaintiff, the 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. The court
also set out conditions that must be met if a judgment is to be published on
a defendant's site.

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25 Nov 2002

'Walkman' has become generic, rules Supreme Court

The Austrian Supreme Court has held that Sony's trademark WALKMAN has
become a generic term for portable stereos and therefore Sony cannot prevent
others from using 'walkman' to describe similar goods.

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