What are the causes of counterfeiting and piracy in Austria?
Online trading of counterfeits, which maintain the anonymity of the seller, the ability to easily trade in multiple countries and the possibility to order copies of official e-commerce outlets’ products online have made the Internet the most used supply channel for counterfeits.
Which are the goods that most often face counterfeiting and piracy in Austria?
Not only luxury goods, fashion, music, and film products, but also an increasing variety of consumer goods, such as sports apparel, shoes, cosmetics, sanitary products, pharmaceuticals, watches, and mobile phones (including accessories and technical equipment for electronic devices) are the goods that most often face counterfeiting and piracy in Austria.
Does Austria have a well-established framework for the enforcement of Intellectual Property Rights (IPRs)?
What are the specific laws/orders/rules laid down in Austria for the enforcement of Intellectual Property Rights?
They are as follows:
Copyright – The Copyright Act (Urheberrechtsgesetz)
Patent – The Patent Act (Patentgesetz)
Utility Models – The Utility Model Act (Gebrauchsmustergesetz)
Trademarks – The Trademark Act (Markenschutzgesetz)
Semiconductors – The Semiconductor Protection Act (Halbleiterschutzgesetz)
Designs and utility patents – The Designs Act (Musterschutzgesetz)
Trade secrets – The Unfair Competition Act (Gesetzgegen den unlauterenWettbewerb)
What are the different types of IPRs protected by IPR enforcement in Austria?
Copyright, patents, utility models, trademarks, semiconductors, designs and utility patents, and trade secrets are the different types of IPRs protected by IPR enforcement in Austria.
What are the general IPR enforcement obligations in Austria?
Criminal infringement proceedings may be initiated only by the person or business damaged by the infringement – not by the public prosecutor.
Secondly, the unregistered marks require a ‘verkehrsgeltungsnachweis,’ which measures the distinctiveness of the sign within the relevant trade circles to establish protection. The ‘verkehrsgeltungsnachweis’ can be proved in the course of a lawsuit (for instance, through opinion polls).
What are the essential to-dos before an IP rights holder initiates the enforcement proceedings?
In civil matters, any kind of evidence is permissible, and since there no discovery principle and the burden of proof lies entirely on the plaintiff, proper evidence should be deuced keeping in mind a counter of every argument a defendant may make in court.
Is there any limitation period for filing an infringement action?
Yes. The right of an owner to sue an infringer is forfeited after 05 consecutive years of knowledge and toleration of the infringement, as long as the infringement has not occurred in bad faith. However, the section 1489 of the civil code, in matters pertaining to civil proceedings, grants limitation for a period of 03 years.
Which of the following IPR enforcement channels is/are available in Austria?
A) Government Authorities -
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
Are civil actions available for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in civil litigation?
Which of the following types of civil remedies is/are available in Austria?
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
Are there any other civil remedies available in Austria than the ones mentioned above? If yes, then kindly explain in brief.
What is the approximate timeline of civil litigation related to IPR enforcement in Austria?
In provisional proceedings claiming a temporary injunction, a decision in the first instance may be expected within a couple of months. For each instance of appeal, the time frame is at most 01 year. In main proceedings, each instance might last about 01 year.
What happens if an IP rights holder abuses the enforcement measures in civil litigation?
Are there any disadvantages of civil litigation in Austria? If yes, then kindly give 2-3 points?
Is criminal prosecution available in Austria for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in criminal prosecution?
Which is the responsible authority in Austria corresponding to the types of criminal remedies available? Also, mention the imprisonment term and the monetary fine.
A) Responsible Authority - Vienna Commercial Court, Vienna Upper Provincial Court, and Sienna Upper Provincial Court
B) Imprisonment Term – For trademark, it is up to 02 years, for patents, it is 02 years, and for copyright, there is imprisonment not exceeding 06 months.
C) Monetary Fine – for trademark and copyright, there is a fine of up to 360 times the per diem rate for calculating fines. In case of patents, fines are based on the offender's daily income or revenue.
Are there any other criminal remedies available in Austria than the ones mentioned above? If yes, then kindly explain in brief.
Other criminal remedies include the claim for elimination of the circumstances constituting the violation of the law (for instance, destruction of the infringing goods), rendering of account, and publication of the judgment.
What happens if an IP rights holder abuses the enforcement measures in criminal prosecution?
Are there any disadvantages of criminal prosecution in Austria? If yes, then kindly give 2-3 points?
Are there any alternative dispute resolution mechanisms which allow parties to resolve their dispute out of court?
Alternative dispute resolution techniques are commonly used and an attempt is first made to settle the pending dispute by negotiations. Sometimes mediation is accepted by the parties or they agree to contact a local or international arbitration board. The benefits of such techniques lie in saving time and money. The risks are that all these measures do not exclude eventually going to court.
Are border control measures (customs) available in Austria for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to the customs authority/department to support his claims of infringement against the opposing party/importer of counterfeit goods?
What are the remedies available under border control measures (customs) in Austria?
Remedies available under border control measures (customs) in Austria include the destruction of goods.
Who must bear the costs of customs intervention during enforcement?
The costs of destruction are borne by the rights holder, although it may later seek to recover them from the counterfeiter.
What happens if an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs?
The same may lead to suspension of detention of goods.
Which are the best practices for enforcement of IPRs in Austria?
Are there any risks involved in the enforcement of IPRs in Austria? If yes, then kindly give 2-3 points.