Category Archives: Allgemein

The IP-Team at Gassauer-Fleissner has contributed the Austrian Chapter on design rights in the International Comparative Legal Guide by glg. Our guide provides a concise overview of the registration and the enforcement of design rights in Austrian and can be accessed here. Design rights protect the visual or in some cases tactile elements of products that are not purely utilitarian. In praxis, their importance is sometimes overlooked and our guide aims at conveying their advantages and limitations.

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Supplementary Protection Certificates (SPCs) effectively extend the protection afforded by patents for medicinal products by up to 5 years. This compensates for disadvantages caused by long approval processes: Generally, years pass between a patent application for a new active ingredient and the approval of a drug. Without an extension, the actual patent protection would therefore be reduced so that the time to recoup investments in research might be insufficient.

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First application of the Glawischnig-Piesczek CJEU decision

As reported, the CJEU clarified in the Glawischnig-Piesczek decision (C-18/18) the possible scope of injunctions against host providers such as Facebook. Following this decision courts may order the deletion not only of the specific infringing post but also of all information with equivalent meaning, even if it originates from other users.

In a new and unrelated case (4 Ob 36/20b), the Austrian Supreme Court (OGH) applied these principles for the first time and issued a remarkably broad injunction. The Austrian Broadcasting Corporation (ORF) acted as plaintiff against defendant Facebook. The dispute concerned the following picture of an ORF news anchor, to which an Austrian politician had added a text translating to: “There is a place where lies become news. This is the ORF”:

https://www.ris.bka.gv.at/~/Dokumente/Justiz/JJT_20200330_OGH0002_0040OB00036_20B0000_000/image002.jpg
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The renowned international magazine “Managing Intellectual Property” annually presents the EMEA Awards in London, which recognize the best European intellectual property firms.

At the ceromony in London on March 5, 2020, Gassauer-Fleissner Attorneys at Law received the award for the best Austrian law firm in the “Patent Contentious” field. The IP-Team was also nominated for top Austrian firm in the categories Trademark Contentious and Copyright & Design.

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Dr. Gassauer-Fleissner, Dr. Göbel und Mag. Wegrostek at the award ceremony.

Preliminary injunctions (PIs) allow rapid and effective action against infringements of intellectual property rights. To this end, the procedural rights of the parties are restricted and the evidence requirements are lowered. However, under the Austrian legal systems these advantages come with a trade-off: In subsequent main proceedings the PI is reviewed and if it turns out that the PI was wrongly granted, the rights holder must indemnify, irrespective of fault, any damage that the alleged infringer has suffered through the unjustified PI. This system, which can also be found in other European countries, is now called into question by the CJEU decision Bayer Pharma v. Richter Gedeon and Exeltis, Case No. C-688/17.

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Due to the borderless nature of the Internet, it is often a hard question in which country right holders may file an action against online IP infringements. Concerning online infringement of EU trade marks, the CJEUhas now created (some) clarity in AMS Neve v. Heritage – C-172/18. Trade mark holders may sue not only in the infringer’s home country but also in the country to which the infringing offers for sale and advertising are directed. This results from Art 125 (5) UMV (formerly Art 97 (5) CTMR).

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If courts declare a hate posting illegal, they can require social networks (here Facebook) to remove not only this posting but also all posts with the same meaning, even if a different user posted them. EU law is not opposed to this. The CJEU stated this in the Case Eva Glawischnig-Piesczek v Facebook (C-18/18). Contrary to what is often reported, the CJEU held that this obligation only applies once a national court has declared the content unlawful. It does not follow from the decision that social networks are required to pre-emptively remove content before a court order is issued.  

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