AUSTRIA Designs
National and community design decisions are very rare in Austria. However, one published case is of particular importance. An exclusive licensee of several community designs for double-wall tumblers, a type of drinking cup, sued an Austrian producer of
tumblers for design
infringement. This presented the Supreme Court of Austria with the opportunity, for the first time, to release statements on important areas of design law. They can be summarised as follows:
• Design protection covers the appearance of a product but does not cover the original per se nor a product as such manufactured according to the design.
• A design is to be regarded as having individual character if no known designs show all of its impressive features or if a known design shows different impressive features.
• In assessing an infringement, the recognition of the overall
impression is crucial, namely whether the comparison of two stylings results as a whole in the impression of correspondence (Supreme Court of Austria, August 31, 2010).
Trademarks
Eff ective July 1, 2010, Austria introduced an opposition procedure for registered trademarks, but not trademark applications that are published for opposition. While a cancellation action against a registered trademark can be fi led at any time for many reasons, opposition is limited to three months of the publication date of an Austrian trademark (this is always the 20th day in a month, usually during the same month of the registration date or the month aſt er).
For international trademarks covering Austria, opposition is also limited to three months but the time period starts on the fi rst day of the month that immediately follows publication. T ere is no opportunity for reinstatement provided by statute if the time limit is missed, because cancellation requests can still be fi led.
www.worldipreview.com World Intellectual Property Review e-Digest 2013 33
IN ASSESSING AN INFRINGEMENT, THE RECOGNITION OF THE OVERALL IMPRESSION IS CRUCIAL, NAMELY WHETHER THE COMPARISON OF TWO STYLINGS RESULTS AS A WHOLE IN THE IMPRESSION OF CORRESPONDENCE.
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