Intellectual Property, Austria updates

Marketability is key: if a work can be separated it is not a joint work
  • Austria
  • 08 January 2018

In a welcome development of Austrian copyright law, the Supreme Court recently ruled that a combination of works by two artists does not constitute a joint work if it can be separated, even if the works involved were created for the sole purpose of being combined as a jointly planned contribution. Strong indicators of whether parts of a work are separable are the individual marketability and possible depreciation of the separated parts.

Introduction of certification marks and other amendments to Trademark Law
  • Austria
  • 20 November 2017

Parliament recently transposed parts of EU Directive 2015/2436 into national law. Most important is the introduction of certification marks, which did not previously exist under Austrian law. Other provisions of the bill concern the division of trademark applications, the shortening of the validity period of a registration and the reduction of the registration fee.

Age of technology – metadata is sufficient to retain author's right of attribution
  • Austria
  • 17 July 2017

The Supreme Court recently ruled that the producer of a photograph who marks his or her name in the photograph's metadata must be credited as the producer on copies of the photograph made by other persons and intended for distribution. This judgment is good news for producers of digital photographs who wish to safeguard their copyright. Persons reproducing and distributing digital photographs should routinely check the metadata to ensure that the producer's name is listed on any reproduction.

Different panels, different opinions – different decisions
  • Austria
  • 20 February 2017

The Supreme Court recently confirmed its view that the issuance of contradicting decisions in, on the one hand, infringement proceedings and, on the other hand, opposition proceedings by different panels of the same appellate court is no reason to admit an extraordinary appeal to the Supreme Court. The decision stresses that, in principle, the appellate courts must consider the issue of likelihood of confusion, and that it will step in only if the appealing party can demonstrate gross misjudgment.

Copyright owners beware! Supreme Court judgment defines author's distribution rights anew
  • Austria
  • 19 September 2016

In light of a European Court of Justice ruling, the Supreme Court recently overturned its earlier interpretation of an author's exclusive distribution right in relation to his or her work of art. The court found that any kind of distribution – regardless of whether it is a transfer of ownership – falls under the author's exclusive distribution right. Further, it held that this distribution right is violated only if ownership in the work is actually transferred.

Intersection between trademark rights and naming rights
  • Austria
  • 13 July 2015

In a recent case a trademark comprising a famous family name was infringed through use in the course of trade by someone with the same family name. The Court of Appeal defined the limits of trademark protection when competing with naming rights and the requirements that trademark owners must meet to shield their trademarks from exploitation under the cover of exercising legitimate naming rights.

To put you in the picture – the 'picture right' under the Copyright Act
  • Austria
  • 11 August 2014

The Supreme Court has once again ruled on a case dealing with the so-called 'picture right' – a provision in the Copyright Act on which numerous decisions are based. In the case, the question arose as to whether a well-known criminal defence lawyer had the right to demand that a media owner not publish his picture. The court weighed the claimant's interest in security against the defendant's interest in reporting the story.

Program logic as intellectual property? Decision brings clarity
  • Austria
  • 19 May 2014

The Supreme Patent and Trademark Board (SPTB) has clarified the status of program logic under the Utility Model Act. The SPTB concluded that program logic can be protected only if it contains a technical aspect. This means that only new, inventive and industry-related technical software can constitute an invention and thus be protected.

Descriptive versus distinctive ‒ trademark battle reloaded
  • Austria
  • 12 May 2014

The Supreme Court recently considered whether an international trademark had a distinctive character that qualified it for protection under trademark law or whether, due to its descriptive nature, it could not be granted protection. The decision confirms that trademarks will be determined as distinctive or descriptive after a subjective and interpretive case-by-case analysis.

How Céline stung the Skorpion: court refuses cancellation of company name
  • Austria
  • 13 January 2014

Following the European Court of Justice decision in Céline, the Austrian Supreme Court has changed its jurisprudence on whether the owner of an earlier trademark can demand the modification or cancellation of a company name that is identical or similar to its trademark. However, some have argued that the decision is too abstract, and it remains to be seen whether the Supreme Court will stick to this position in future.

Product appearance: intersection points between trademark and competition law
  • Austria
  • 19 August 2013

In a recent decision the Supreme Court has reiterated its view that plaintiffs must prove that their products, product appearances and unregistered marks have acquired secondary meaning with the relevant public in order for them to be protected under the Act on Unfair Competition. Producers of products with distinctive product appearances should therefore consider registering them as trademarks.

Amendment of IP-related statutes will come into force shortly
  • Austria
  • 12 August 2013

The introduction of new provincial administrative courts in Austria will fundamentally change administrative provisions in several IP statutes. The main amendments concern the reorganisation of appeal procedures. Among other things, from the beginning of 2014 the Patent Office will handle only first instance proceedings and the Supreme Patent and Trademark Board will be dissolved.

Conflicting interests: court rules on monopolist's obligation to contract
  • Austria
  • 31 October 2011

In a recent decision the Supreme Court upheld the position of a collecting society claiming copyright infringement, ruling that the interests of an author to receive remuneration for the use of its work have greater weight than the interests of practising a trade. The court's decision is in accordance with the prevalent German doctrine on the subject concerning the monopolistic position and the obligation to contract.

Court clarifies legal aspects of supplementary protection certificates
  • Austria
  • 27 June 2011

In a recent decision the Austrian Supreme Court thoroughly examined the legal effects of a supplementary protection certificate for medicinal products and its interrelation with patent rights. The decision is complex, but provides valuable information on related proceedings for injunctive relief. Additionally, the detailed examination of legal aspects of supplementary protection certificates is welcome.

Supreme Court clarifies trademark regulation for comparative advertising
  • Austria
  • 20 June 2011

The Supreme Court recently clarified the applicability of Article 12(c) of the Community Trademark Regulation in the context of comparative advertising, ruling that it should be interpreted narrowly and must be employed only in cases where such usage is the only possibility for providing the public with comprehensive information on the marketed goods.

Patent protection: pharmaceutical product versus dietary supplement
  • Austria
  • 13 December 2010

In a recent decision the Supreme Court evaluated the scope of patent protection of so-called 'Swiss-type claims' and infringements constituted by dietary supplements, thereby interpreting the European Patent Convention on a national level. A Swiss-type claim is intended to cover subsequent medical use (or indication of efficacy) of a known substance or composition.

Opposition proceedings introduced in latest amendment to Trademark Act
  • Austria
  • 16 August 2010

The latest amendment to the Trademark Act grants trademark proprietors the right to submit a notice of opposition against registered trademarks. Previously, a proprietor had to wait for a trademark to be registered before it could challenge the lawfulness of the registration. By implementing opposition proceedings, the legislature also introduced a legal remedy to cancel a trademark registration retroactively.

Flat-rate compensation for patentable employee inventions
  • Austria
  • 04 May 2010

The Patent Act provides for regulations with respect to employee inventions. Thus, employees (if they are not specifically employed for the purpose of making inventions) are entitled to adequate compensation if the invention or any right to use the invention is transferred to the employer. In a recent case the Supreme Court confirmed its view on the validity of flat-rate compensation agreements for employee inventions.

Supreme Court rules on permissibility of trademark parodies
  • Austria
  • 26 April 2010

In a recent case the Supreme Court ruled on the permissibility of parodies of trademarks. The defendant claimed that its trademark, STYRIAGRA, was a parody of the claimant's trademark, VIAGRA, and that it wanted to encourage discussion about the use of chemical products (VIAGRA) as opposed to natural products (Styrian pumpkin seeds).

Peer-to-Peer File Sharing: Nothing to Worry About for Music Pirates?
  • Austria
  • 26 October 2009

The Supreme Court recently clarified potentially far-reaching aspects of copyright-related information rights in the internet age. An Austrian copyright collecting society identified a number of dynamic internet protocol addresses that had unlawfully shared copyright-protected material. It requested that the internet access provider identify the holders of the respective addresses at the relevant dates and times, but it declined to comply.

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