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National Trademark

Protection in Austria for your trademark.

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The Trademark

A trademark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of giving distinctiveness to the goods or services of one company companed to those of ohter companies and are represented on the register in a manner which enables the compentent authorities and the publick to determine the clear and precise subject matter of the protection afforded to its proprietor.

Who may apply – Legal Representation?

Anyone may file an application, regardless of whether they are an individual person or legal entity (company).

Permanent address/registered officeIs a representative required?
AustriaNo (You are, however, entitled to have a representative. If the representative you choose is not a professional representative such as a patent law firm, law firm or notary’s office, you must present a written power of attorney.)
EEA/SwitzerlandNo (an authorised recipient in Austria is sufficient)
Outside the EEA/SwitzerlandYes (patent law firm, law firm or notary’s office)

The Trademark Examination Procedure (Kopie 1)

In general, this procedure can be subdivided into three phases:

  1. Formal Examination
  2. Notification of the Similarity Search
  3. Examination of Legality

The average duration of these proceedings is 2 to 3 months (Fast Track applications approx. 10 days).Any exchange of correspondence, however, will prolong this period of time.

Subsequent to your application on paper you receive from us a confirmation of receipt which includes your application’s reference number and a request for payment of fees (Fees MA 211). In order to speed up the procedure, please pay these fees as quickly as possible otherwise the examination procedure will not commence until one month has elapsed and another request for payment of fees is issued.

There is no special confirmation of receipt or request for payment of fees where online applications are concerned as the system’s dispatching process will automatically generate these in printable form. You can gather the reference number of your online application from the printouts and use it for immediate fee payment.

In cases of online applications no separate confirmation of receipt is transmitted as the system automatically generates such receipt confirmations which may subsequently be printed out. The fee statement of an automatically generated receipt confirmation is concomitantly a request for payment. Payment is possible in the course of application proceedings and is, in fact, a prerequisite when filing Fast Track-applications. Also included in the print-out is the file number of your online application.

 

Formal Examination

To begin with formal aspects of the application such as trademark images, list of goods/list of services, power of attorney etc. are vetted. Should there be any shortcomings you receive from us a notification to remedy these.

Notification of the Similarity Search

The similarity search is a list of identical trademarks or confusingly similar, already registered trademarks. This list is an important decision-making tool that enables you to decide whether to go ahead with your trademark’s application or, should older comparable trademarks of third parties exist, preferably cancel the application.

Owners of older, identical or confusingly similar trademarks registered for comparable products/services might take legal action against your trademark should they regard your novel application as being prejudicial to their protective rights. They could, for instance, submit a notice of opposition against the registration of your trademark or a request for cancellation at the Austrian Patent Office and bring a civil action before the Viennese Commercial Court (e.g. sue for an injunction, damages etc.).

Whether or not you have recourse to the law is solely your own decision just as much as it is solely up to you to decide whether to go ahead with the application procedure after reviewing the findings of the similarity search. Again note that the Austrian Patent Office’s application procedure does not comprise findings concerning the issue whether identical trademarks or older similar trademarks capable of being mistaken actually exist. The plain fact that such prior registrations exist does not constitute an obstacle to your own trademark’s registration. Quite often owners of trademarks capable of being mistaken find means and ways to coexist, e.g. by concluding a co-existence agreement or license agreement.

Quite outside of and prior to the application procedure a similarity search carried out by serv.ip or a comparable service provider furnishes timely information regarding the existence of identical or possibly confusingly similar trademarks. The issue whether to go ahead with the application procedure has to be decided upon within one month of similarity search notification. Requesting an extension of this time limit is unproblematic provided the request is submitted within said one month’s time limit. Should you be able to decide more rapidly, please let us know by means of the form sent to you – this helps shorten the process duration.

Please note: in those cases where a Fast Track online application is submitted the similarity search is transmitted per Email and no time limit is officially prescribed as regards response and comment. A search for prior rights of third parties in opposition to the application before the application is submitted is thus especially apposite and highly recommended. Should you however become aware of such prior rights upon receipt of the Fast Track similarity search please contact the responsible trademark examiner directly and as soon as possible in order to decide on how to proceed (e.g. agreements regarding deadlines of settlement discussions). Doing this quickly is especially important as the withdrawal of your application including a partial refund is only possible in such cases until registration of the trademark.

Examination of Legality

The examination of legality comprises an investigation of whether the trademark is capable of being protected and a search for registration obstacles (e.g. lack of distinctiveness of the trademark, a solely descriptive statement of the trademark etc.). The most significant of these registration obstacles are contained in § 4 MSchG. Should there be any such obstacles you will be notified by us and are entitled to express your opinion respecting these objections within a certain prescribed period. If there is no response on your part or should you be unable to submit arguments capable of overriding the official objections we will have to reject your application. You are entitled to lodge an appeal against such an unfavorable decision before the Higher Regional Court of Vienna (Oberlandesgericht Wien) and subsequently the Supreme Court (Oberster Gerichtshof).

Should the trademark applied for fulfill all registration requirements it will receive a consecutive registration number with which it is entered in the trademark register. You in turn receive from us a confirmation of registration. Additionally, your registered trademark is published in the Austrian Trademark Gazette, issued on the 20th of each month.

Subsequent to registration of the trademark the sign ® may be used in trade. This serves as a note that this is a Registered Trademark. The owner of such a trademark has an obligation of disclosure to third parties.

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