A trademark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to help consumers indentify that its products or services with which the trademark appears originate from a unique source, and to help distinguish its products or services from those of other entities.
Trademark in Austria may be designated by the following symbols:
- ® (for a registered trademark)
- ™ (for an unregistered trademark)
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standards categories, such as those based on colour, smell, or sound.
A trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to identify goods or services, or to authorize another to use it in return for payment. Trademark protection also hinders the efforts of unfair competitors, such as counterfeiters, to use similar distinctive signs to market inferior or different products or services.
The owner of the registered trademark may initiate legal proceedings for trademark infringement to prevent unauthorized use of that trademark.
|Relevant office||Austrian Patent office|
|Nice classification||Yes (11th edition)|
|Multi class system||Yes|
|Documents required for filing a trade mark application||Original or certified copy of the Power of Attorney|
|Prosecution process||Filing publication of the mark in the trade mark journal opposition(within 3 months from the publication of the registration) registration renewal|
|Registration term||10 years from the date of filing|
|Renewal term||10 years|
Trademark searches in Austria
It is advisable to conduct a trademark search prior to filing a trademark application to ascertain the availability of trademarks, existence of prior identical/similar marks on the register etc., so as to avoid any objection and opposition with respect to the mark.
A trademark search in Austria can be conducted for word marks, device marks, numeral and labels. An official search can be conducted at the records of the Austria patent office. The option of trademark similarity search is available on the official website of the registry. The users can order trademark similarity search and they will receive a search report in electronic form (PDF document) with all identical and similar marks found. A company search register is also attached. The results are emailed within 24 hours of the request.
Trademark word search edition of Austria follows the Nice Classification and trademark applications can be filed for goods in classes 1-34 and services in classes 35-45.
It is advisable to conduct comprehensive trademark clearance search in Ausria to ascertain availability of the proposed mark and also to overcome any objection and opposition with respect to mark later on.
Along with trademark search, it is also advisable to do a comprehensive company search and domain search of the proposed trademark in Austria. It is advisable to conduct a comprehensive search for a figuration trademark. The device marks include individual marks such as stylized letters, numerals, shapes, plants, celestial bodies, living creatures etc. or combination of marks containing device marks. A device mark search in Austria can be conducted amongst the marks filed and registered as per the Vienna code classification.
Filing trademark application in Austria
A person may file multi class or single class trademark applications in Austria.
Trademark application can be filed in the following categories:
- Ordinary Applications
- Convention application (claiming priority from a convention country)
Ordinary application in Austria:
Ordinary trademark applications filed Austria are applications without claiming any priority. Ordinary applications in Austria are filed online through the official website of Austria patent office. There two online systems available for filing trademark application, first is “fast track Mark”- the quick trademark application for word, word-figure or figurative mark and “standard online registration”- register all trademarks forms online. Multi class trademark applications can be filed in Austria. However, the trademarks act also lays down provisions regarding the filing of priority applications, wherein priority of the mark can be claimed in the said mark filed in a convention country.
Priority trademark applications in Austria/Convention trademark application in Austria:
A priority trademark application may be filed in Austria. A priority trademark application should be filed in Austria within 6 months after the date on which the application was made in the convention country.
The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, established a Union for the protection of industrial property. It offers national treatment to the applicant residing in the member country of the union, in other words. National treatment is a very important concept and is essential for successfully achieving the fundamental aim of the Paris Convention. The idea is to provide equal treatment to applications from member countries, in a given member country and not to differentiate between the nationals of member countries for the purpose of grant, and protection of industrial property. Priority application can be filed in Austria within six months of after the date on which the application was made in the Convention Countries.
Trademark classes for goods and services
Austria follows the nice classification of classes. Austria patent office uses the nice classification of classes that groups together similar goods or services into 45 different classes. Classes 1 to 34 are assigned for the goods and classes 35 to 45 are assigned for the services. Each class contains well defines list of terms and cover all the goods and services.
Trademark examination in Austria
Once the application is submitted for the registration as part of the legality check, the application is examined and is checked whether there is any obstacle to registration for e.g. Grounds of distinctiveness, an exclusively statement etc. If there is any obstacles to registration, the applicant is notified regarding the same and the applicant is given certain time to comment on those concerns raised. If the concerns raised are not cleared or the applicant does not respond about the concerns, the application for the registration is rejected.
Such a decision can also be appealed to the higher regional court of Vienna.
If the trademark meets the requirements of the registration it will be entered into trademark register and the registration number is allotted and additionally, the trademark is published in the Austrian Trademark gazette.
Trademark opposition in Austria
The trademark opposition in Austria is 3 months from the publication of the registration in the Austrian trademark gazette.
During this stage the owners of the Older, identical or confusingly similar trademark registered take action against the applicant’s trademark if they are of the view that their priority rights have been affected by such registration. In this case the interested party file an objection or an application for cancellation with the Austrian patent office and bring civil action before Vienna commercial court.
Trademark registration in Austria
The application shall proceed to registration where there is no opposition or where the opposition was filed and was decided in favor of the applicant. The mark is registered for a period of 10 years from date of application and the registration certificate is issued.