Austria

Abstract

Intellectual property is protected in Austria under national Trademark Law, under Competition Law, as well as under Copyright, Patent and Design Law. For the purpose of this report, only Trademark and Copyright Law aspects and, where appropriate, Competition Law aspects, will be considered. From a constitutional law aspect, in particular, trademark rights enjoy legal protection as fundamental rights. The European Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Austria on 16 April 1965, provides in its 1st Additional Protocol for the right to the peaceful enjoyment of one’s possessions. Furthermore, the Austrian Fundamental Rights Act states that all property shall be inviolable. All private rights with an economic value fall under the definition of property, as it is interpreted by the constitutional court. Those rights are protected against expropriation and are also invoked from time to time in court. However, the argument of expropriation is often raised in the context of infringement cases by trademark owners whose rights are challenged. They try to defend their trademark by arguing that a court order to refrain from its use would result in such ‘expropriation’ and thereby infringe their constitutional rights.