Trademark Protection in Austria

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Trademark Protection in Austria

Scope

The Austrian trademark is regulated by the Trademark Protection Act. The scope of an Austrian trademark covers the entire territory of Austria. Outside of Austria, however, an Austrian trademark has no validity due to the principle of territoriality – like all national trademarks.

Caution: anyone selling their goods or services from abroad to Austria must, however, observe Austrian trademarks and should therefore, conversely, secure their own trademark rights in Austria.

Registration

The Austrian Patent Office (ÖPA) is responsible for the registration of Austrian trademarks. The application for registration of a national trademark in Austria can be submitted electronically or in paper form.

In the first step, the Austrian Patent Office subjects the application to a formal examination and a legality examination. This processing takes approximately 10 working days for applications submitted via the fast-track procedure, otherwise 2 to 3 months.

If all registration requirements are met, the trademark is entered into the Austrian Trademark Register. From the date of registration, the three-month opposition period begins, during which holders of earlier rights can easily file an opposition against the new trademark and request the retroactive cancellation of the registration. In the event of an opposition being filed, a separate opposition procedure is conducted.

However, opposition is not the only option for holders of earlier rights to proceed against a new trademark. Even years after registration, holders of earlier rights can still sue for cancellation of a trademark.

The apparent feeling of success “Registration of the trademark” therefore protects neither against an opposition nor against a cancellation action. The reason for this is simple: The most important question, namely whether the trademark infringes earlier rights, is not examined by the patent office before registration.

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte „Schutz vor Widersprüchen und Löschungsklagen bietet nur eine anwaltliche Recherche vor Durchführung der Anmeldung.“
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Application Fees

The application fees for an Austrian trademark depend on the type of trademark, the number of classes to be registered, and the chosen procedure.

The application fee covers all costs for a protection period of 10 years.

Legal Fees

Our trademark protection packages include all services for registering an Austrian trademark at a fixed flat rate.

Term of Protection

The protection period of an Austrian trademark is 10 years. By timely payment of the renewal fee, the protection period can be extended indefinitely for further periods of 10 years each. In case of non-payment of the renewal fee, the trademark will be automatically cancelled.

The Austrian Patent Office sends an automatic reminder approximately three months before expiration. However, there is no legal entitlement to this. Therefore, if the reminder does not arrive for any reason whatsoever, the trademark will still be cancelled in case of non-payment of the renewal fee, without any claims being derivable therefrom.

For this reason, it is advisable to have the renewal of the Austrian trademark monitored as part of our monitoring packages.

Renewal Fee

The renewal fee is a flat fee, which depends on the type of trademark but is independent of the number of classes.

The renewal fee can be paid no earlier than one year before its due date and no later than six months after its due date. For payments made after the due date, a 20% surcharge must be paid in addition to the renewal fee.

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Relationship to other Marks

Austrian Trademark vs. Foreign National Trademark

A national Austrian trademark is only valid in Austria. Similarly, foreign national trademarks are only valid in those states where they are registered. Therefore, conflicts cannot generally arise between Austrian trademarks and other national trademarks.

An exception to this rule only exists in the case of a bad-faith trademark application. A trademark application is considered to be in bad faith, for example, if it is made solely for the purpose of preventing the expansion of an already existing foreign trademark.

Austrian Trademark vs. EU Trademark

EU trademarks are valid throughout the entire EU, including Austria. Therefore, conflicts can arise between Austrian trademarks and EU trademarks. These conflicts are decided according to the principle of priority. The older trademark therefore has the superior right.

Austrian Trademark vs. International Trademark

The protection of an international trademark application can also be extended to Austria. Therefore, conflicts can arise between Austrian trademarks and international trademarks. These conflicts are decided according to the principle of priority. The older trademark therefore has the superior right.

Austrian Trademark vs. Austrian Company

Conflicts can arise between Austrian trademarks and Austrian companies. These conflicts are decided according to the principle of priority. The older mark therefore has the superior right.

Austrian Trademark vs. Business Designation

Conflicts can arise between Austrian trademarks and business designations. These conflicts are decided according to the principle of priority. The older mark therefore has the superior right. However, under Austrian law, a business designation can only jeopardize a trademark if the business designation has market recognition.

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Think Big

Registering a purely Austrian trademark alone makes sense for very few companies. Those who do not operate exclusively locally must think bigger.

Austrian Webshops

For an Austrian operator of a German-language webshop, not only Austria but also Germany, which is 10 times larger, and Switzerland, which is significantly more financially powerful, are relevant. In addition, there are large German-speaking areas in France, Italy, Luxembourg, the Netherlands, and Belgium. Therefore, an EU trademark in combination with an IR trademark for Switzerland would make significantly more sense for Austrian webshop operators than a purely Austrian trademark.

Amazon Seller

This applies even more strongly to Amazon Sellers. The Amazon Seller account offers valuable features for holders of a registered trademark. A prerequisite for this is the submission of the trademark to the Amazon Brand Registry. However, purely Austrian trademarks are not accepted by the Amazon Brand Registry. For this, an EU trademark, for example, is necessary.

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Advantages of National Registration

The biggest disadvantage of a national Austrian trademark application is also its biggest advantage: its geographically very limited scope of protection to the territory of Austria.

Thus, an EU trademark has the trademarks of all national trademark registers of all EU states as its “counterparts”. For an Austrian trademark, however, the national trademarks of other EU states do not pose a problem. This means that a national Austrian trademark, due to its limited geographical scope of protection, is significantly less risky than an EU trademark.

Basic Mark for an International Trademark Application

Due to its higher security, a national Austrian trademark is significantly better suited as a basic mark for an international trademark application than an EU trademark. This is because an international trademark depends on the basic mark for the first five years. If the basic mark ceases to exist, the international registration also ceases to exist.

Therefore, the national Austrian trademark is often registered in addition to the EU trademark to use it as a secure basis for the international trademark application.

Additional Security Factor

For the same reason, a national Austrian trademark can also make sense as additional protection for globally operating trademarks. If only an EU trademark exists and it is lost, then trademark protection is entirely forfeited. If, however, national trademarks also exist, then depending on the scenario, only the protection in one state is lost. However, usually only very financially strong companies can afford this level of security.

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Alternatives to the Austrian Trademark

EU Trademark

If trademark protection is sought in several EU states, then an EU trademark is an interesting alternative to national trademarks. National trademarks offer more security because, unlike an EU trademark, they are not affected by other national trademarks in foreign trademark registers. However, in terms of price, the EU trademark is significantly cheaper from the third EU state onwards.

Small companies therefore usually choose the EU trademark for cost reasons.

International IR Trademark

For non-Austrians, it is often easier to register an international IR trademark with scope of protection in Austria instead of a national Austrian trademark.

Register your Austrian Trademark Now

Do you want to register an Austrian trademark? Then you’ve come to the right place!

You can find an overview of the costs and fees in our trademark protection packages with fixed prices.

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