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Trademarks

Trademarks are marks which can be depicted graphically and are used to identify goods and/or services. They are used to distinguish the goods and/or services of one company from those of another company.

Among other things, signs not having distinctiveness such as purely descriptive information which has not acquired any “public recognition”, generic designations and misleading information cannot be protected.

A distinction is made inter alia between word marks, figurative marks and combined marks. In addition, there are also rather exotic types of trademarks such as the audio mark.

National trademarks, international trademarks extended to Austria and European Union Trademarks (EUTM) can offer protection in Austria. 

A trademark must be requested and registered at the respective patent office. Prior to registration, the trademark application passes through an examination process in which the existence of legally prescribed protection requirements is examined by the patent office. In the course of opposition or cancellation proceedings, third parties, in particular proprietors of earlier identification rights, can proceed against the registration of a trademark.

Upon successful completion of the examination process in Austria and many other countries, the trademark is initially registered for 10 years. The term of the trademark can be extended arbitrarily frequently by payment of appropriate renewal fees.

It is of central importance for the legal validity of a trademark that it is used seriously to identify those goods and/or services for which the trademark was registered. If this is not the case, after a usage grace period, which is 5 years in Austria and many other countries, has expired, third parties can proceed against the trademark by means of an application for cancellation.

As with patents, there is a period for claiming the right of priority within which subsequent applications can be filed in other countries whilst claiming the seniority of the first application. The period for claiming the right of priority is six months for trademarks.

The scope of protection of a trademark comprises naturally identical characteristics used as a trademark for identical goods and/or services. In addition, the protection of the registered trademark also extends to the so-called area of similarity in which identical or similar characteristics are used as a trademark for identical or similar goods and/or services and as a result a risk of confusion can arise among the relevant public. In trademarks having a reputation, the scope of protection even goes beyond the identical and similar goods and/or services. Trademarks having a reputation are protected for all goods and services.

The enforcement of the rights to the trademark with respect to infringers is accomplished in a broadly similar manner to that of a patent.

 
 
 
 

Patentanwälte
Hofmann & Fechner
Hörnlingerstraße 3
Postfach 5
6830 Rankweil
ÖSTERREICH
T: +43 5522 73137
F: +43 5522 73137-10
office@vpat.at

 

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