All signs which can be represented graphically, e.g. words, letters, numbers, pictures and combinations thereof as well as the shape or make-up of an article may be trademarks provided that these are capable of distinguishing the goods or services of one enterprise from those of another enterprise.
The period of protection runs for 10 years and may be extended for 10 years.
Austrian Trademarks
After filing with the Austrian Patent Office, the application is examined for legal conformity and a report on prior registered marks which are deemed to be similar is prepared. However, the same or similar prior trademarks are no obstacle to registration.
Within three months from the publication of the registration (which occurs every 20. day of a month) an opposition may be filed which may only be based on a senior trademark right. Decisions of the Legal Department of the Austrian Patent Office on oppositions are contestable by recourse to the Vienna Upper Provincial Court. Irrespective of the opposition term, trademarks may be contested on the grounds of confusing similarity with prior trademarks, not registered designations, company names etc. or non-use for the past five years by filing a petition for cancellation. Against decisions of the Nullity Department of the Austrian Patent Office appeals can be lodged with the Vienna Upper Provincial Court.
International Trademarks
An international trademark may be registered on the basis of a national (home) trademark (i.e. first registration in the country of the establishment of the owner) at the World Intellectual Property Organisation (WIPO) either directly or through the original registration office for a plurality of countries, having the same effects in each of these countries as a national trademark.
However, the designated countries may object to protection in their territories within a certain period of time after international registration, resulting in national proceedings.
Community Trademarks
Applications for trademarks enjoying EU-wide protection may be filed with the Office for Harmonization in the Internal Market (Trademarks and Designs). After an examination for conformity with the law these are first published for possible opposition and ultimately, when all requirements for registration are met, registered.
Against decisions by the Divisions (Opposition, Nullity Divisions) of the Harmonization Office may be lodged with the Board of Appeal.
Afterwards an action can be brought before the General Court (EGC) of the European Union. Judgements of the EGC may be contested before the Court of Justice of the European Union (JEU) as far as legal questions are concerned.
Upon request a filed or registered Community trademark may be converted to a national trademark application in a EU member state.
