AUSTRIA
AUSTRIA
An opposition should be based only on a senior trademark application or
registered trademark (ie, Austrian trademark, international
trademark valid in Austria, or community trademark [CTM]). The proceedings are generally conducted in written form. However, on request of one of the parties, oral hearings have to be scheduled. An oral hearing may also be scheduled ex officio.
A lack of use plea may be brought against the trademark on which the opposition is based. In this case the opposing party does not need to provide full proof of use but must show prima facie evidence of use. In case of an action (eg, based on non-use) against the trademark on which the opposition is based, the opposition proceedings will be suspended. Te most promising opposition may be continued and the rest suspended when several oppositions are active against the same trademark.
The decision on an opposition is rendered by a single member of the legal department of the Austrian Patent Office. If an opposition is partly or fully granted,
cancelled) from the beginning of
the opposed trademark is quashed (not its duration of protection. An
opposition decision may be appealed against before the patent office’s remedies department. Each party has to bear its own costs during an opposition proceeding. This is in contrast to a cancellation proceeding in which the losing party has to refund the statutory costs of the proceeding and the successful party’s representation.
Colour marks
In June 2012, a landmark decision on colour marks was published which, however, may be disputed because the protected colour combination has, in actual use, appeared merely as the background of another, more distinctive trademark.
Red Bull GmbH is the owner of numerous Austrian as well as CTMs for energy drinks in class 32, especially CTM 3350501, resembling two bulls in red colour fighting against each other in front of a yellow sun circle with the words ‘Red Bull’ in red colour underneath, as well as CTM 2534774, resembling the colour combination blue/silver in a relation of about 50:50 and a yellow circle in the middle, which was registered on basis of acquired distinctiveness.
Red Bull GmbH distributes its energy drinks in cans showing a trade dress consisting of the aforementioned trademarks. It sued the Austrian producer of canned energy drinks as well as its principal for infringement. The cans were intended for distribution in Poland and
34 World Intellectual Property Review e-Digest 2013
Lithuania as well as in other European countries and show on the front side a silver strip framed by two blue strips, and in the silver strip the words ‘Run’ and ‘Cool’ in red separated by a yellow smiley face with sunglasses. Red Bull GmbH was successful in all three instances (Commercial Court of Vienna, Upper Provincial Court of Vienna, Supreme Court of Austria).
Te courts held that the Red Bull trademarks and trade dresses are well known in the European Union so that only similarity was crucial, but not the risk of confusion per se. Furthermore it was stated that the two-colour trademark with the yellow circle covers even not quite identical colours as well as areal relations, so slight deviations are within the scope of protection. Moreover it was pointed out that the evaluation of the impression of the trade involved is a legal question, meaning expert evidence based on an opinion poll could not be offered.
It was finally held that the principal of the Austrian producer had infringed in bad faith the rights of Red Bull GmbH to its well-known CTM 2534774, in that by using the well-known colour combination the intention was obvious to take advantage of the repute and distinctive character of the earlier trademark without due cause. This intention was additionally underlined by the overall trade dress of the infringing cans.
Domain names
International tourist destination and skiing village Schladming, owner of the domain name
schladming.at, and a tourism company offering its services under the domain name
schladming.com, became involved in a legal dispute over their domain names. Te Supreme Court of Austria held in a non-final decision that it might be possible for different top-level domains, ie, .at and .com, to show no confusion between the respective owners. Although the case was remitted to the court of first instance for a finding of the actual understanding of the trade involved, the new standpoint is remarkable, because a confusion assessment had been directed to the second (and higher) level domain (Supreme Court of Austria, January 18, 2011).
Copyright
An exploitation corporation (licensing body) sued a hotel operator and requested copyright compensation because radio and TV broadcasts were distributed from an aerial antenna into the hotel’s individual rooms. The Supreme Court of Austria finally held, reversing its former
www.worldipreview.com
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119