Overview

Through recent amendments to the Austrian Trademark Act, Austria follows the international trend of trademark opposition procedures. The new procedure will take effect from July 2010.

Presently, in the course of the trademark application procedure, the Austrian Patent and Trademark Office (PTO) does not examine whether the trademark applied for is in conflict with existing trademarks. Only absolute grounds for refusal (eg, lack of distinctiveness) are examined. It is up to the owner of an older trademark to actively challenge a younger conflicting trademark registration.

Under the current legal regime, younger conflicting trademarks can only be challenged in regular cancellation proceedings. In practice, such proceedings tend to take a long time, with a senate consisting of three representatives of the PTO deciding after an oral hearing has been held.

The new opposition procedure is intended to provide a faster resolution of trademark conflicts immediately after a younger trademark has been registered. The opposition period is three months from the publication date of the younger trademark. The proceedings are conducted and a decision is taken by an appointed representative of the PTO, subject to appeal. An oral hearing is not mandatory and is foreseen only for exceptional cases