Protecting Your IP in Austria

If a company believes their IP has been breached, what are the legal options available in Austria? If the breach comes from outside of the EU, how can this be dealt with?

The best way to act upon a situation like this is to seek help from your lawyer ASAP! Austria has an established legal system that works well. However, in order to rule out lasting damage one should act quickly – Rule No. 1: be sure to immediately secure the evidence! The first step the lawyer will take is to ask the accused to stop the behaviour immediately and to acknowledge this liability in writing. If damage has been caused, it can be claimed. Especially if there is concrete evidence, it makes sense to be heading towards a claim. In addition, however, certain punitive amounts can also be demanded as compensation for the infringement. In that case, one is not forced to prove the actual amount of damage.

If none of the above requests are being met, you should immediately file a lawsuit at court. Since a lawsuit takes at least a few months to complete, one should also apply for a prohibitory injunction. If all evidence has been well documented and secured – which I highly recommend to all my clients – chances are that you are more likely to get the injunction granted. If filed in a proper way, this would immediately prevent any further damage. Judicial verdicts can be enforced by foreclosure. Usually one can require publications in suitable media at the expense of the offender himself.

It is recommended either by yourself or by a legal professional to regularly check whether your own intellectual creation or the company label is used illegally by competitors within the market.

In principle, all assets of the offender in Austria can be used to cover the damage caused. This is also easily possible within the EU according to law. There are only a few differences in the actual efficiency of the respective enforcement. In the case of interventions from outside the EU, a distinction must be made: if this infringement of rights has occurred within its jurisdiction (for example, if the intervention takes place via the internet and it is clear where it is being accessed), one can take legal action there. Or if the perpetrator is based in the EU, the court of jurisdiction of his registered office may be responsible. Outside the EU, it always depends on the individual case: can a claim be legally validated there? Is there a branch or are there assets within the EU? These are questions that a professional must clarify.

How can companies remain vigilant and protect their IP?

Copyrights apply directly and protect the intellectual identity of the author. They do not need to be specially registered. Inventions, company labels and industrial designs can be registered at the Austrian Patent Office and the European Union Intellectual Property Office. Either as a patent or utility model. A company label can be protected by a trade mark.

Either way, you have to act immediately in order not to risk any disadvantages and possibly damaging your own brand.

It is recommended either by yourself or by a legal professional to regularly check whether your own intellectual creation or the company label is used illegally by competitors within the market. If this is the case, one should immediately take unequivocal legal steps as shown above to prevent further damage.

What are the common grounds for dispute?

A very common case is the violation of a company label or a brand. It may be that such one is misused directly for the competitor’s own services. Sometimes this is done only partially by adopting essential features. Either way, you have to act immediately in order not to risk any disadvantages and possibly damaging your own brand. Significantly rarer, but also possible: utility models and inventions are violated. In many cases, a settlement can be achieved without the initiation of a judicial procedure. This presupposes, however, that the opposite side is rational and resonable. If this is not the case, the court has to decide. However, the Austrian legal system works well and I am confident lawyers and judges are well trained for scenarios like these.

What are the alternatives to litigation in relation to IP disputes in Austria?

The rules on antitrust law and merger control are already being questioned in many places.

In recent years, arbitration tribunals have established themselves as a valuable alternative to legal disputes. It can be quite useful to deal with such, if the other side agrees. Or, in the case of a contractual dispute, if its jurisdiction has been agreed upon. Often, proceedings before the arbitral tribunal are faster and less expensive than legal clarifications. It should be noted, however, that only judicial decisions can be reviewed by all judicial instances. Therefore, it is advisable to seek advice from a legal professional if such a question arises.

Have there been any updates or trends with regard to IP law recently? Do you anticipate any changes in the near future?

Especially in the field of data protection, the courts – in Austria, decisions of the Supreme Court are an important guideline, but do not create new laws, as it is the case in the United States – will have their say in the coming months and years. Also, the awareness that the individual is still largely the master of his own data, must be sharpened. I expect that the jurisprudence will clarify the framework prescribed here by the regulatory regime, also on the basis of trend-setting individual cases.

The rules on antitrust law and merger control are already being questioned in many places. From a political point of view, many believe that the EU’s rules are too rigid and that they involve disadvantages vis-à-vis foreign competitors.
This is being discussed especially in Germany right now. It will certainly depend on the next EU Commission’s focus.

Within some months, Austrian banks had to repay customers more than € 360 millions!

How have your studies towards your PHD in Philosophy and MA in History affected your perspective towards legal matters?

I am a curious person by nature, who always wants to look outside the box and who aims to break new ground. That’s why it has always been important to me to educate myself as broadly as possible, not only professionally concerning legal aspects, but also beyond the legal side of things. The MBA has given me some solid business background knowledge, and my great interest and years of work in connection with medical liability cases, have given me a certain medical understanding. The same can be said about my interest in anything related to bank and its laws. However, the studies of philosophy and history have provided me completely different access to legal cases. The occupation with philosophy forces a strictly logical and analytical thinking which I understand as one of the basic requirements of a good lawyer. History, on the other hand, reveals the relation of certainties: what was undisputed in one epoch and considered to be valid forever can again be regarded as hopelessly anachronistic in the next. These studies, therefore, teach us not to lose sight of the basic condition of any law: it is anchored in society and time and has to be understood as a flexible organism according to the socioeconomical framework. I also think that my reasoning was sharpened by these studies. And, by the way, to develop “non-specialist” skills is really fun!

What are the benefits of a creative and unique perspective towards cases?

I think that this enables, above all, some kind of surprise effect; one comes up with ideas that one might not develop if strictly moving within the frame of law. For example, by having appealed to the Austrian Supreme Court I have reached a decision for bank customers, which I owe to this thinking: for years, banks demanded excessive interest from the customer in times of negative interest rates. Through strict reflection on legal foundations, which are not least founded in social theory, I have succeeded in bringing about a trend-setting decision-making practice. Within some months, Austrian banks had to repay customers more than € 360 millions!

In court, this surprise effect is sometimes very impressive. Due to the broad base I own a diverse background of knowledge. This allows for reasoning based not only on legal aspects but also on scientific, methodical knowledge. Even though the case should be tricky legally – I’m never at a loss for an answer!

Dr. Hubert Niedermayr

Stadtplatz 46, A-4400 Steyr

Tel +43 (0) 7252 421 20  |  Fax +43 (0) 7252 421 20-22

Email:office@hniedermayr.at

www.hniedermayr.at

My name is Dr. Hubert Niedermayr, executive director and owner of the law firm Niedermayr Rechtsanwalt GmbH in Steyr, Upper Austria. I have worked as a lawyer since 2006. My main focus is concerned with medical liability cases, bank law and IP. I hold a MA and a PhD-Degree in law, one MBA in General Management and a MA in philosophy. In addition, I am studying history and am currently completing my PhD-Studies in philosophy and medical law.