Austria (AT)
01-01-2010 (Newsletter Issue 6)
Introduction of Opposition Proceedings and Amendment of Official Fees
With the latest amendment of the trademark law of 2009, trademark opposition proceedings were introduced. Owners of prior trademarks may file an opposition against the registration of confusingly similar trademarks at the Austrian Trademark Office within 3 months from publication. Owners of prior trademark filings have the same right as long as their filing proceeds to registration. Opposition can be filed against trademarks published after July 1st, 2010.
The fees for trademark filing were amended as well: As from January 1st, 2010, the total fees have to be paid at the beginning of the registration proceedings. The fee for each additional class exceeding the 3rd is raised from EUR 25.00 to EUR 40.00. The former trademark duration fee has been integrated with the filing fee. The total filing fee for up to three classes amounts to EUR 329.00, and another EUR 40.00 for each additional class.
Source: Sonn & Partner, Austria
Legal basis is the Trademark Act of 1970 (last amended 1999).
Austria is a member of the Paris Union Agreement, the Madrid Agreement, the Madrid Protocol, the Nice Agreement and the European Union.
The international classification of goods and services consisting of 45 classes has been adopted.
Trademark protection is obtained by registration. An unregistered trademark can only be held against a registered trade mark if it has become well-known at the priority date of the registered trademark.
Registrable as a trademark are any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing a good or services of one undertaking from those of other undertakings. Colours are only registrable upon proof of acquired distinctiveness. Sound trademarks are registrable if represented graphically. Three-dimensional forms are also registrable, but if they consist of the form or design of goods or their packaging, registration is difficult. There do not exist any olfactory marks in Austria. The Austrian law does not differentiate between trade marks and service marks. Special rules apply to collective trademarks.
The application is filed at the Patent Office.
Multiple-class applications are possible.
Foreign applicants need a local agent.
A non-legalised power of attorney is sufficient.
Foreign applicants do not need a domestic registration.
The application process includes a formal examination and an examination on absolute grounds of refusal. Signs not considered distinctive in the examination can be only registered upon proof of acquired distinctiveness. The Patent Office also conducts a search for identical and similar trademarks, but does not cite offically older rights as bar to the registration. The search results, however, serve for the information of the applicant. Owners of prior trade marks are not informed. If the trade mark applicant insists, the trademark must be registered in spite of similar or even identical prior trademarks.
The application procedure from first filing to registration will take approximately 3 to 4 months if no serious problems are raised by the examiner. The first office action is to be expected after 3 to 4 weeks. Only after registration, the trademark is published in the monthly journal “Österreichischer Markenanzeiger”.
The opposition period is three months from the publication of the registration for trademarks published after July 1st, 2010. Formerly, Austrian law did not provide for an opposition procedure.
Trade mark protection begins with the date of registration, but retroactively as of the priority date. The protection period is 10 years from the registration date and ends on the last day of that month in which the protection period ends. The registration is renewable for periods of 10 years without limitation.
A trade mark registered for at least 5 years may be contested by any third party on the basis of alleged non-use. The burden of proof for serious use is excusively upon the trademark owner. If not contested, the trademark will continue to be valid and even if not used for a period longer than 5 years, it can be revalidated by taking up serious use subsequently, provided that no third party contested the trademark during the period of non use.
The official fee is EUR 300.00 for up to three classes and EUR 40.00 for each additional class. Another EUR 25.00 of printing costs are due and a further EUR 4.00 for confirmation of trademark registration.
| Search type |
First class |
Add. class |
| Word Mark Search (availability) |
220,00 € |
70,00 € |
| Word Mark Search (identical) |
60,00 € |
20,00 € |
| Extended Search (word mark, company name, domain) |
350,00 € |
70,00 € |
| Device Mark Search (availability) |
380,00 € |
80,00 € |
| Trademark Owner Search |
140,00 € |
|
| Company Name Search |
170,00 € |
|
| Domain Name Search (extended) |
72,00 € |
|
| i-Search (word mark availability + legal opinion) |
450,00 € |
100,00 € |
The Prices above are S.M.D. Markeur Search Fees