Graf & Pitkowitz Rechtsanwalte GmbH updates

Flashlight decision illuminates compensation guidelines for unlawful use of IP rights
Graf & Pitkowitz Rechtsanwalte GmbH
  • Intellectual Property
  • Austria
  • 22 April 2019

The Supreme Court recently had to decide whether the infringer of a registered Community design had to hand over the entire net profit or just a share of profit earned due to its use of an infringed design. The decision has great practical importance, as it gives IP rights holders clear guidelines regarding what to expect when claiming compensation for an unlawful use of their rights.

Restructuring plans and their impact on non-participating creditors
Graf & Pitkowitz Rechtsanwalte GmbH
  • Insolvency & Restructuring
  • Austria
  • 05 April 2019

Under the Insolvency Act, once a restructuring plan has been confirmed, the debtor is discharged from its debt and is subsequently prevented from paying its creditors their deficiency or repaying other granted benefits. Consequently, any claims that were not registered during the insolvency proceedings – even if they should have been – fall under this restriction and cannot be repaid. That said, exceptions to the rule exist.

ECJ rules on Austria's Good Friday dilemma
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Benefits
  • Austria
  • 27 February 2019

The European Court of Justice advocate general recently confirmed that the Austrian regulation which sets out that Good Friday is a paid public holiday only for members of four specific churches is discriminatory. Further, the advocate general concluded that each affected employee could claim holiday pay for past periods, unless such claims were already time barred, in which case claims could be brought against the Austrian state.

Avoidance of overdraft payments due to preferential treatment
Graf & Pitkowitz Rechtsanwalte GmbH
  • Insolvency & Restructuring
  • Austria
  • 21 December 2018

The Insolvency Act provides insolvency administrators with an abundance of tools to challenge any actions committed by a debtor during a crucial period prior to the opening of insolvency proceedings. Two recent Supreme Court decisions summarise the existing judicature and further clarify the elements of avoidance due to preferential treatment.

Dispenser for free newspapers – work of art?
Graf & Pitkowitz Rechtsanwalte GmbH
  • Intellectual Property
  • Austria
  • 17 December 2018

The Supreme Court recently set out clear principles regarding the protection of a work of visual art under the Copyright Act where technical functions played a role. In its decision, the court explained that the assessment as to whether a (visual) piece of work is actually protected by copyright must be assessed by the court as a legal issue only. There is no room to consider the opinion of experts or any other third parties.

Strikes and right to strike
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Benefits
  • Austria
  • 12 December 2018

It is widely understood that the Austrian concept of 'social partnership' (ie, the system for cooperation between the two sides of industry) has largely contributed to peaceful industrial relations. The social partnership recently agreed on a new collective bargaining agreement for the metal industry. However, negotiations in several other trades and industries have followed, and in a less constructive atmosphere, further strikes may be forthcoming.

Is Beneficial Ownership Register Act compliance an insolvency administrator's duty?
Graf & Pitkowitz Rechtsanwalte GmbH
  • Insolvency & Restructuring
  • Austria
  • 05 October 2018

Before the most recent update to the online FAQ section by the responsible authority, the question of whether Beneficial Ownership Register Act compliance is an insolvency administrator's duty was unclear. Due to the tight timeframes for complying with the act and the range of practical problems arising from it, the question has caused headaches for insolvency law practitioners in Austria.

Good Friday and direct discrimination on religious grounds
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Benefits
  • Austria
  • 03 October 2018

Under Austrian law, Good Friday is a paid public holiday only for members of four churches. An employee who belonged to none of these churches took issue with this and sued his employer. The case eventually reached the Supreme Court, which requested a preliminary ruling by the European Court of Justice (ECJ). In his recently issued opinion, the ECJ advocate general delivered what will likely also constitute the court's position on the matter.

Exhaustion of trademark rights and burden of proof
Graf & Pitkowitz Rechtsanwalte GmbH
  • Intellectual Property
  • Austria
  • 03 September 2018

The Supreme Court recently clarified the circumstances in which the burden of proof regarding the exhaustion of trademark rights shifts from the defendant to the trademark owner. It made clear that unless the defendant can prove a concrete risk of partitioning markets, it is up to the defendant to prove that the trademark rights relied on by the plaintiff are exhausted. This should be borne in mind when raising this defence.

Demolition crackdown: Vienna protects its buildings
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 31 August 2018

The City of Vienna recently announced its intention to reform the building code. Some building owners consider it unfair that strict maintenance obligations and rent limits apply only to old buildings, whereas buildings constructed after 8 May 1945 can be let at market rent. As a result, many building owners have chosen to tear down historic buildings and erect new concrete and steel structures in their place. Therefore, one of the aims of the reform is to protect the city's historic buildings.

Beneficiary's repayment obligation following bank guarantee by consumer securing third-party debt
Graf & Pitkowitz Rechtsanwalte GmbH
  • Banking
  • Austria
  • 20 July 2018

The Supreme Court recently extended the scope of the sections of the Consumer Protection Act that protect consumers that accede to a third party's obligation without any economic interest of their own. Although the Supreme Court returned the case to the first-instance court, the guidelines drawn up in this decision will apply to any type of collateral provided in similar situations for the account of a consumer.

Counsel beware when submitting unspecified notices of arbitration
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 19 July 2018

The Supreme Court recently considered whether a rather brief and general notice of arbitration in ad hoc proceedings containing a nomination had properly initiated the arbitration proceedings and was thus sufficient grounds to request the Supreme Court to appoint an arbitrator, following the respondents' refusal to nominate one. The decision is a soft reminder for counsel that sending out incomplete notices of arbitration or nomination requests can be a time-consuming and costly endeavour.

Parliament passes new Working Time Act
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Benefits
  • Austria
  • 18 July 2018

Parliament recently passed a new law that brings sweeping changes to the Working Time Act and will come into effect on 1 September 2018. The law – which was heavily debated in the media and caused much controversy among the 'social partnership' (the Austrian system for cooperation between the two sides of industry) – sets the stage for more flexibility in a changing work environment.

Liability for payments after company has become insolvent
Graf & Pitkowitz Rechtsanwalte GmbH
  • Insolvency & Restructuring
  • Austria
  • 22 June 2018

If a managing director of a company makes payments after a substantive insolvency, they may be liable for damages under the Statute on Limited Liability Companies. Managing a company in a crisis situation requires special diligence and care. In order to avoid unpleasant surprises later on, where possible, the admissibility of envisaged future payments should be checked in advance.

Supreme Court manages shopping centre management costs
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 08 June 2018

Service charge provisions in shopping centre lease agreements frequently give rise to disputes between landlords and shop operators. In a recent decision on such costs, the Supreme Court offered some insights into shopping centre lease agreements which go beyond service charge provisions.

Selective distribution systems and exhaustion of trademark rights
Graf & Pitkowitz Rechtsanwalte GmbH
  • Intellectual Property
  • Austria
  • 04 June 2018

The Supreme Court recently affirmed once more that the exemptions to the principle of exhaustion of trademark rights must be construed narrowly. In its decision, the court made clear that once trademark rights are exhausted, resellers may use not only word marks, but also figurative marks without any limitations when advertising or reselling original products.

Subordination agreements, revisited
Graf & Pitkowitz Rechtsanwalte GmbH
  • Banking
  • Austria
  • 11 May 2018

The Supreme Court recently confirmed the admissibility and validity of qualified subordination agreements included in general terms and conditions and with respect to consumer transactions. Further, the Supreme Court held that qualified subordination agreements – in particular, those relating to loan agreements – create a specific type of contract. This decision has a significant impact on standard bank loan transactions, especially in restructuring situations.

Employed or self-employed? Request an advance ruling!
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Benefits
  • Austria
  • 09 May 2018

Determining whether an individual is an employee or self-employed can be risky for both the contractor and engager. Often, no one knows exactly how to qualify an individual until the national insurer claims arrears in social security payments in the wake of an audit. The parties involved hardly ever have legal certainty in advance. The Social Security Determination Act aims to change that.

Vienna International Arbitral Centre issues new arbitration and mediation rules
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 05 April 2018

The new Vienna International Arbitral Centre (VIAC) Rules of Arbitration and Mediation recently entered into force. They apply to all arbitration and mediation proceedings initiated after December 31 2017. The amendments to the VIAC rules allow for parties to conduct efficient and cost-effective arbitration and mediation proceedings, while offering enough flexibility when applying them in individual cases.

Supreme Court: no change of control despite departure of majority shareholder
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 09 March 2018

The Supreme Court recently considered whether a landlord can increase the rent if the majority shareholder of a partnership dies and his or her shares are distributed equally among the remaining partners, none of whom holds a majority in the partnership. In the decision, the Supreme Court offered an insight into how to assess the change of control in a company that is not a corporation.

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