looking to the right) was registered as a trademark.
A competitor, also residing in Salzburg, in 2015 started to sell
Salzburger Mozartkugel, also wrapped in a silver paper with
a blue circle logo, but with the head of Mozart looking to
the left. It was sued for infringement based on the Trademark
Law and the Law Against Unfair Competition. The request
for discontinuance of distribution in Austria (based on
trademark rights) was, however, not granted (because the
competitor’s confections were not deemed confusingly
similar to the registered wrapping of the trademark).
The competitor was enjoined from distribution of his goods only in
the city of Salzburg, where the Original Salzburger Mozartkugel
was regarded as having acquired high distinctiveness and enjoys
protection on the basis of competition law.
The VUPC held, confirming the Nullity Department of
the Austrian Patent Office (APO), that the mere use of a
trademark for description of an enterprise is not genuine.
Without a specific relationship to goods and services, a
trademark misses its objective as an indication of origin.
An individual word-design mark, ‘Steirisches Kürbiskernöl’
(styrian pumpkin seed oil), was licensed to a producer
association and used as a protected geographic al indication.
A cancellation action was brought against it because it was
allegedly not genuinely used in Austria by the proprietor
nor, with his consent, by a third party. Neither the proprietor
nor the association sold styrian pumpkin seed oil.
The Nullity Department of the APO dismissed the request.
However, the court of appeal (VUPC) overturned the
decision and cancelled the trademark; this was confirmed by
the Supreme Court. It held that the trademark was not used to
identify the origin of the goods under the control of a single
enterprise responsible for their quality. On the contrary, the
individual mark was used as a certification (quality) mark and
therefore is understood as such by consumers.
Purchasers will regard the sign as a mere indication of a
specific, controlled quality and/or manufacturing method
being locally restricted. By such a use, no relation or
connection to a single enterprise, namely the trademark
owner or the licensed association, can be established.
An internet access provider which, among other services,
provides access to bit-torrent platforms, was sued by a
performing rights society safeguarding the rights of music
producers and performing artists to discontinue this access.
In the preliminary proceedings, the Austrian Supreme
Court issued a temporary injunction, holding that making
available and operation of a bit-torrent platform enabling
online file-sharing among users of this platform is a “public
communication” reserved for the copyright owners.
The internet provider’s defence that it is, on one hand, just an
intermediary and, on the other hand, that its websites serve
just as index pages on which internet users can search for
music titles but which do not contain any protected matter and
do not enable any links to protected content, was dismissed.
The Supreme Court thus followed the CJEU, which has held
that the term “public communication” also encompasses
the provision and operation of a file-sharing platform on
the internet which leads, via indexation of metadata, to
protected works and, via a search engine, enables users of
that platform to find these works and share them through a
Amazon EU, a Luxembourg company, mentioned on
its German-language website, which is also directed to
consumers in Austria, that if consumers want to place
any comments, Amazon would be granted an exclusive
licence to use this content online and offline on the basis
of Luxembourg law. The Austrian Society for Consumer
Information attacked this clause successfully.
The Austrian Supreme Court held (after a preliminary
judgment by the CJEU) that only Austrian law is applicable
and that the clause violates not only Austria’s Copyright Law
(because it restricts the rights of the creators of any comments)
but also Austria’s Civil Law and Consumer Protection Law.
Two well-known artists created a combined sculpture and
got into a legal dispute about revenue, and the Austrian
Supreme Court had to decide whether co-authorship
existed. It held that co-authorship can be assumed only
when an indivisible work was created to which each
author has contributed a specific mental creation. The
mere working together when producing the work does not
suffice for the qualification of co-authorship.
No indivisible work is present if parts of it may be
individually and separately commercialised. The subjective
idea of several authors/creators about the inseparability of
a work is not decisive but instead the objective possibility
of a separate commercialisation. n
Peter Israiloff is an attorney at Barger Piso & Partner.
He can be contacted at: firstname.lastname@example.org
www.worldipreview.com IP Pages 2019 29