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Enforcement of IPRs in Austria


Enforcement of IPRs
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.
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.
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)
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.
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).
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.
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.
A) Government Authorities -
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
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.
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.
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.
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.
Remedies available under border control measures (customs) in Austria include the destruction of goods.
The costs of destruction are borne by the rights holder, although it may later seek to recover them from the counterfeiter.
The same may lead to suspension of detention of goods.
Court proceedings