IP/N/6/AUT/2  
 
23 January 2023  
(23-0525) Page: 1/15 
Council for Trade -Related Aspects of  
Intellectual Property Rights  Original: English  
 
 
CHECKLIST OF ISSUES ON ENFORCEMENT1 
RESPONSES FROM AUSTRIA  
Introduction  
Update of Austria 's list of responses regarding enforcement issues as of 11 -2022.  
 
 
Civil and Administrative Procedures and Remedies  
 (a)  Civil judicial procedures and remedies  
 
1.  Specify the courts which have jurisdiction over IPR infringement cases.  
 
a. Industrial property  
 
At the first instance and irrespective of the amount in dispute, the Commercial Court 
(Handelsgericht ) of Vienna has compulsory and exclusive nation -wide jurisdiction over cases 
regarding infringement of industrial property rights, including interim injunctions in connection with 
such cases (§ 53 JN). In this context, 'industrial property ' includes patent s, utility models, 
supplementary protection certificates, designs, union designs, trademarks, union trademarks, 
topographies of semiconductor products, and plant variety rights. The competent court at the second 
instance is the Higher Regional Court ( Oberl andesgericht ) of Vienna. Appeals against its decisions 
can be brought before the Austrian Supreme Civil and Criminal Court ( Oberster Gerichtshof  – 
§ 4 JN). 
 
b. Copyright  
 
At the first instance and irrespective of the amount in dispute, the various Commerci al Courts have 
jurisdiction over copyright infringement cases (§ 51(2) No. 10 JN). As only Vienna has a separate 
and specialized Commercial Court, the various Regional Courts ( Landesgerichte ) have jurisdiction 
over the other provinces of Austria in their c apacity as Commercial Courts (§  51(3) JN). The 
competent court at the second instance is the Higher Regional Court having territorial jurisdiction. 
Appeals against its decisions can be brought before the Austrian Supreme Civil and Criminal Court 
(§ 4 JN).  
 
2.  Which persons have standing to assert IPRs? How may they be represented? Are 
there requirements for mandatory personal appearances before the court by the right 
holder?  
 
a. Standing and representation  
The persons and entities having standing to asser t their intellectual property rights in court are 
generally the holders of these rights. Parties appearing before the Commercial Courts or the other 
courts mentioned above must be represented by an attorney -at-law (§  27(1) ZPO). In such a case, 
the party n evertheless has the right to appear before the court with their attorney -at-law and to 
 
1 Document IP/C/5  IP/N/6/AUT/2  
 
- 2 - 
 
  make oral statements to the court (§  26(2)  ZPO). Patent attorneys may not represent their clients 
in civil or criminal IP infringement cases, but only in administrative proceedings and in appeals 
proceedings against administrative decisions (§  16(1) PatAnwG). Foreign attorneys -at-law admitted 
to practice in EEA countries and having furnished evidence of an Austrian attorney -at-law they are 
in agreement with, may represent  a client before Austrian courts in accordance with EIRAG.  
 
b. Personal appearances before the court  
The court may summon a party to appear for court hearings (§ 183(1) No. 1 ZPO). Parties can also 
be ordered to testify in order to provide evidence on questions of fact that are disputed and also 
significant for the court 's decision on the case. Such an order may be issued ex officio  or upon 
request by a party (§  371 ZPO). If a party summoned to appear for questioning fails to appear and 
testify before t he court and also fails to provide a sufficient excuse, the court may freely interpret 
this behavio ur of the party as evidence (§ 381 ZPO), which will usually be in their disfavo ur. The 
court cannot, however, actually force a party to be present during a c ourt hearing or to testify before 
the court (§ 380(3) ZPO).  
 
3.  What authority do the judicial authorities have to order, at the request of an 
opposing party, a party to a proceeding to produce evidence which lies within its control?  
 
The court may order any party to submit documents or other objects in their possession for judicial 
inspection if a party has referred to them in the legal proceedings. Such an order may be issued 
ex officio  or upon request by a party (§ 183(1) No. 2 ZPO).   
 
If Party A claims that Party B has documents in their possession that are relevant for proving 
Party A's case, Party A can request the court to order Party B to submit those documents for judicial 
inspection (§  303(1) ZPO). Party B by may refuse the sub mission of a document if  
 
it refers to family matters;  
 
the submission would violate a duty of hono ur; 
 
disclosure of the document would put shame on, or might entail the risk of criminal prosecution 
of, the party or third persons;  
 
the disclosure would violate an officially recognized duty of secrecy, such as a trade secret 
(Kunst - oder Geschäftsgeheimnis ); 
 
there are other equally significant reasons to justify a refusal to submit (§ 305 ZPO).  
 
Attorneys -at-law and patent attorneys are under a strict duty of secrecy regarding client information 
and enjoy attorney -client privilege (§  9(2) and (3) RAO, and § 17(2) PatAnwG). On the other hand, 
Party B may not refuse the submission of a document if  
 
1. Party B has referred to it for the purpose of giving evidence;  
2.  Party B is obliged to hand over or submit the document according to civil law;  
3. it is a common document of both parties, e.g. a mutual contract concluded between 
them or a document written in the interest of all parties (§  304 ZPO).  
 
The above provisions on the submission of documents also apply to the submission of other physical 
objects, especially data carriers (§ 369 ZPO).  
 
The court cannot, however, force parties to submit such evidence. Still, the court may freely ta ke 
failure of a party to comply with a submission order into consideration when evaluating the evidence 
(§ 272(1) ZPO and §  307(2)  ZPO), which will usually be in the non -complying party 's disfavo ur. The 
same shall apply if the party has intentionally dispo sed of the document or rendered it unfit for use.  
 IP/N/6/AUT/2  
 
- 3 - 
 
  The rights and duties of Party B described above generally also apply to third parties, who can be 
forced to submit documents – but not physical evidence – within their control as evidence, if they 
are obl iged to hand the document over to Party A or if the requested document is a common one to 
the Party A and the third party (§ 308 ZPO).  
 
4.  What means exist to identify and protect confidential information brought forward 
as evidence?  
 
There is no general rule in Austrian civil procedure that provides for special marking or protection of 
confidential information, but only specific rules that apply to certain cases. As already mentioned 
above, a party may refuse the submission of documents and other objects on certain grounds, which 
includes duties of secrecy (§ 305 ZPO). Other provisions on the identification and protection of 
confidential information are:  
 
a. The right to remain silent  
Parties and witnesses may, inter alia,  refuse to testify if  
 
by answering a question, they would put shame on, or risk criminal prosecution of, themselves 
or on other persons close to them,  
 
they would have to violate a duty of secrecy, which includes attorney -client privilege and trade 
secre ts (Kunst - oder Geschäftsgeheimnisse) . 
 
Only witnesses may additionally refuse to testify if by answering a question, they would cause a 
direct adverse effect to their own wealth or the wealth of certain other persons close to them (§ 321 
and §  380(1)  ZPO). 
 
With this being said, it is important to point out that there is no general rule that prevents a civil 
court from considering illegally obtained evidence in its decision. This means that if e.g. a witness 
violates a duty of secrecy by testifying, or a p arty submits documents containing trade secrets, the 
court is generally not required to disregard this evidence. On the other hand, the injured party often 
has a claim for damages against the person who has violated their duty of confidentiality.  
 
b.  Exclusion of the public from court hearings  
The public is to be excluded from court hearings ex officio  if a public hearing would endanger public 
morals or public order, or if there is reasonable concern that a public hearing would be abused to 
disturb the hea ring, or to impede the presentation of facts. If facts concerning family life or trade 
secrets ( Geschäftsgeheimnisse ) are to be discussed and proven, the public can only be excluded 
only upon request of a party (§ 172 ZPO).  
 
Apart from these reasons, the public can be excluded from court hearings regarding cases of criminal 
infringement of patents, utility models, or trademarks. The court can order the exclusion upon 
request if a company or trade secret ( Betriebs - oder Geschäftsgeheimnis ) of a party or a w itness 
would otherwise be at risk (§ 161 and §  119(2) PatG, § 42(6) GMG, § 60b MSchG). In proceedings 
involving a claim on the grounds of the Federal Act against Unfair Competition, the public may be 
excluded upon request if a business or company secret co uld be endangered by the presence of the 
public (§ 26 UWG). Persons who publicly disclose confidential information gained from non -public 
court or administrative hearings risk criminal prosecution and a prison sentence up to six months 
(§ 301 StGB).  
 
It is also worth noting that even if a hearing is public, it is illegal to make recordings or transmissions 
of it on photos, videos, or sound records, etc (§ 22 MedienG). Unlawful recordings are considered 
disruptions of the hearing, which means that the court  can expel any person recording from the 
court room (§ 198(2) ZPO). The press and other spectators must cease recording as soon as the 
hearing is opened, and may only quietly observe and take notes.  
 IP/N/6/AUT/2  
 
- 4 - 
 
  c. Inspection of case records ( Akteneinsicht ) 
The parties have the right to inspect a court 's records on their case, with some exceptions regarding 
certain kinds of documents, also in the case of procedural records of other courts or intellectual 
property rights material submitted by wi tnesses. Third parties can only be granted inspection of case 
records provided that this is not contrary to certain legitimate interest of third parties or the public 
and if, additionally, either both parties consent to the inspection or the third party pr ovides 
prima  facie evidence of its legal interest (§ 219 ZPO).  
 
Implementing the Directive (EU) 2016/943 on the Protection of Trade Secrets, § 26h UWG lays down 
rules intended to ensure the confidentiality of business secrets in civil court proceedings. Where 
applicable, the court has to take measures to protect the business secret even if this means to 
restrict the other party`s right to inspect files and the right to be heard. The court shall also produce 
a confidential version of the writt en decision, which shall be used by everyone but the owner of the 
secret and the court.  
 
5.  Describe the remedies that may be ordered by the judicial authorities and criteria, 
legislative or jurisprudential, for their use:  
 
- injunctions;  
 
-  damages, inc luding recovery of profits, and expenses, including attorney 's 
fees;  
 
-  destruction or other disposal of infringing goods and materials/implements for 
their  production;  
 
-  any other remedies.  
a. Industrial property  
The following remedies against an infringer are available to the holder of an industrial property right, 
with patent law provisions also applying to utility models (§  41 GMG) and designs (§ 34 MuSchG):  
 
i. Injunction  
 
An injunction forces a proven infringer to cease certain infringing conduct and desist from such 
conduct in the future ( Unterlassung ). The infringing conduct does not need to be culpable. The 
applicant needs to prove their legal interest and in particular that there is a risk of imminent 
infringement ( Erstbegehu ngsgefahr ) or of repeated infringement ( Wiederholungsgefahr  – § 147 
PatG, § 51 MSchG). Such a risk will generally be presumed even if there has only been one incident 
of infringement.  
 
ii.  Monetary compensation  
 
The injured party can choose from the foll owing claims:  
 
generally:  
 
o adequate compensation, or instead  
 
only in case of culpable infringement:  
 
o damages, including lost profits, or instead  
 
o recovery of profits made by the infringer as a result of the infringement, or instead  
 
only in case of reckless or intentional infringement:  
 
o double the amount of adequate compensation (as a lump sum).  
 IP/N/6/AUT/2  
 
- 5 - 
 
  In specific cases of culpable infringement, the injured party can additionally claim compensation for 
immaterial damage (§ 150 PatG, § 53 MSchG). The infringer is obliged to disclose their accounts 
concerning the infringement and to hire an expert to audit them (§ 151 PatG, § 55 MSchG) . 
 
Recoverability of attorney 's fees is discussed under Question 8.  
  
iii. Remedy of infringement  
 
The injured party can demand that the infringer be ordered to remedy the illegal status quo  at their 
own cost, in particular by destroying the infringing g oods and by making the means of infringement 
unusable for the infringement ( Beseitigungsanpruch ). The injured party also has the option to 
instead demand  
 
a method of remedy that destroys less (economic) value, or  
 
that the infringing goods and the means of infringement be transferred to their possession in 
exchange for an adequate compensation that may not be higher than the cost of production 
(§ 148 PatG, § 52 MSchG).  
 
iv. Publication of the court 's decision  
 
If there is legitimate interest, the p revailing party can demand permission to publish the court 's 
decision. The exact wording of the publication is contained in the court 's decision on the infringement 
case itself (§ 149 PatG, § 55 MSchG).  
 
b. Copyright infringement  
 
In essence, the provisio ns on  
 
injunctions,  
 
remedy of infringement, and  
 
• publication of the court 's decision  
 
under copyright law are almost the same as those in the statutes on industrial property. The only 
major differences are on the issue of monetary compensation. The copyright infringer owes the 
injured party  
 
• adequate compensation (irrespective of culpability), and 
 
damages, including lost profits (only in case of culpable infringement),  
 
or instead   
 
double the amount of adequate compensation as a l ump sum (only in case of culpable infringement).  
 
In case of culpable infringement, the injured party can additionally claim compensation for non -
monetary injury. In specific cases of culpable infringement, the injured party can additionally 
demand recover y of profits. The infringer is obliged to disclose their accounts concerning the 
infringement and to audit them, or to hire an expert for this purpose (§§ 86 -87a UrhG).  
 
6.  In what circumstances, if any, do judicial authorities have the authority to order  the 
infringer to inform the right holder of the identity of third persons involved in the 
production and distribution of the goods or services found to be infringing and of their 
channels of distribution?  
 
The injured party can demand disclosure concerning the origin and the marketing channel of the 
infringing goods and services, but only if this would not be unreasonable considering the gravity of 
the infringement and would not contravene statutory duties of confidentiality. Those who are under 
this disclosure requirement are the infringer and persons who, for commercial purposes, have  
 IP/N/6/AUT/2  
 
- 6 - 
 
  possessed infringing goods,  
 
made use of infringing services, or  
 
rendered services that were used for the infringement.  
 
The disclosure requirement includes, as  far as it is reasonable, information regarding  
 
names and addresses of manufacturers, distributors, suppliers, and others who have had 
possession of the goods or services, as well as commercial buyers and points of sale,  
 
the amounts of goods produced, delivered, received, or ordered; as well as the prices paid for 
the goods or services (§ 151a PatG, §  41 GMG, § 34 MuSchG, § 55a MSchG, § 87b UrhG).  
 
7.  Describe provisions relating to the indemnification of defendants wrongfully 
enjoined. To what extent are public authorities and/or officials liable in such a situation 
and what "remedial measures" are applicable to them?  
 
The remedy available for indemnification of defendants wrongfully enjoined is a claim for damages 
against a pu blic body. It can be brought for loss or damage caused by unlawful and culpable conduct 
of an officer of the relevant public body in the course of their duties (§ 1 et seq.  AHG). In the case 
of wrongful enjoinment by the civil or criminal courts, the relev ant public body will generally be the 
Republic of Austria. The public officer as a person cannot be directly held liable by a defendant 
wrongfully enjoined, but may face claims for damages from the public body if it has been made liable 
for the officer 's conduct (§ 3 et seq.  AHG).  
 
8.  Describe provisions governing the length and cost of proceedi ngs. Provide any 
available data on the actual duration of proceedings and their cost.  
 
a. Duration of civil proceedings  
 
There are various provisions in Austrian civil procedure aimed at discouraging parties from 
unreasonably prolonging court proceedings:  
 
If a party has given cause to extend a due date or to prolong a court hearing, the court may ex officio 
or upon request impose the costs thus incurred o n the party (§ 142 ZPO).  
 
If the court finds that a party could have  
 
• made certain statements of fact or  
 
• presented evidence  
 
earlier than it did (and that it has thus prolonged the proceedings), the court may ex officio 
or upon request impose on the party  
 
• the court fees on that party, even if it prevails (§ 44 ZPO), or  
 
• the costs thus incurred (§ 48 ZPO).  
 
If the court finds th at, after careful consideration of all circumstances, there can be no  reasonable 
doubt that  
 
• evidence offered would considerably prolong the proceedings, and  
 
• the intention of the party offering the evidence was to protract ( verschleppen ) the 
  proceedings,  
 IP/N/6/AUT/2  
 
- 7 - 
 
  the court may ex officio or upon request refuse the taking of the evidence offered (§ 275(2) ZPO).  
Where the acceptance of a piece of evidence meets with the obstacle of uncertain duration, the court 
must upon request fix a due date after the expiry of which the proceedings are continued irrespective 
of any evidence not yet presented.  
 
Parties can only make new statements of fact or present new evidence until the end of the last oral 
hearing before the court of first instance (§ 179 Z PO). 
 
Compared to many other countries, court proceedings in Austria are rather swift. In 2021, only 
2.2 % of all civil proceedings took longer than three years. The average duration of civil dispute 
proceedings before the Regional Courts, which serve as t rial courts for IP infringement cases, was 
17.3 months. These numbers , however, are not specific to such cases, which are often more complex 
and lengthier tha n the average civil litigation.  
  
b. Costs of civil litigation  
 
In Austria, court fees generally depend on the nature of the dispute and on the amount in dispute. 
This means the higher the amount of money that the plaintiff claims in their lawsuit, the hig her the 
court fees they have to pay to initiate court proceedings. The court fees are generally calculated as 
one lump sum per instance, i.e. they do not depend on factors such as the duration of the 
proceedings or on the number of court hearings. The curr ent rates of court fees in civil proceedings 
are the following:  
  
Amount in dispute  Amount of court fees  
up to € 150  € 25 
more than € 150 and up to € 300  € 48 
more than € 300 and up to € 700  € 68 
more than € 700 and up to € 2,000  € 114  
more than € 2,000 and up to € 3,500  € 182  
more than € 3,500 and up to € 7,000  € 335  
more than € 7,000 and up to € 35,000  € 792  
more than € 35,000 and up to € 70,000  € 1,556  
more than € 70,000 and up to 
€ 140,000  € 3,112  
more than € 140,000 and up to 
€ 210,000  € 4,670  
more than € 210,000 and up to 
€ 280,000  € 6,227  
more than € 280,000 and up to 
€ 350,000  € 7,783  
More than € 350,000  € 4, 203 plus 1.2 % of the amount in 
dispute  
(§ 32 TP 1 GGG)  
 
Attorneys -at-law, patent attorneys, and their clients are generally free in their agreement on the 
price of legal representation. Quota litis  agreements, however, are not permitted, which means that 
a promise by a client to cede a share of the award to the ir attorney is unenforceable (§ 879(2) No.  2 
ABGB).  
 
For the duration of the legal dispute, each party bears their own costs of litigation, which, for the 
plaintiff, includes the court fees.  
 
The overall costs of litigation can be quite significant as the y, inter alia , include attorney 's fees, court 
fees, expert 's remuneration, and witness ' compensation. At the end of civil proceedings, the total 
costs of litigation incurred by both parties are allocated to them on a pro rata  basis depending on 
the degree to which they each have prevailed (§  40 et seq.  ZPO). It is therefore theoretically possible IP/N/6/AUT/2  
 
- 8 - 
 
  for a fully prevailing party to recover all the costs of litigation from the opposing party. The 
reimbursement of attorney 's costs in court proceedings is calculat ed according to a tariff system 
based on the amount in dispute. The RATG regulates the maximum amount of the reimbursement 
of costs. Any costs incurred by the party vis -à-vis its own attorney (e.g. on the basis of a free 
agreement) exceeding this amount sh all be borne by the party itself, even if it has fully prevailed.  
 
 
(b)  Adminis trative procedures and remedies  
 
9.  Reply to the above questions in relation to any administrative procedures on the 
merits and  remedies that may result from these procedures.  
 
In Austria, enforcement of intellectual property rights is a matter of civil and criminal law, which fall 
under the exclusive jurisdiction of the civil and criminal courts. Non -enforcement related matters 
such as proceedings regarding application, registration, conveyance and nullity, on the other hand, 
are generally matters of administrative law and fall under the jurisdiction of the Austrian Patent 
Office. It is worth noting, however, that appeals against decisions by the Austrian Pat ent Office need 
to be filed with and decided by civil courts, i.e. the Higher Regional Court of Vienna (and in turn the 
Austrian Supreme Civil and Criminal Court), and not by the administrative courts.  
 
 
Provisional Measures  
(a)  Judicial measures  
 
10.  Describe the types of provisional measures that judicial authorities may order, and 
the legal basis for such authority.  
 
In Austria, a court may order an interim injunction ( einstweilige Verfügung ) as a provisional measure 
to secure the rights of a party before and during regular court proceedings and also during the 
execution of the court 's decision. An interim injunction generally aims to secure the requesting 
party's opportunity to pursue a claim in regular court proceedings. Therefore, the reques ting party 
needs to state exactly which claim it wants to have secured. The opportunity to pursue the relevant 
claim is, inter alia , deemed to be at risk if  
 
there is a risk of imminent irretrievable loss or damage,  
 
if there is a likelihood that the oppo sing party would behave in a way that would render the 
collection of the award difficult or impossible, or  
 
the award would have to be enforced in a country where enforcement is not secured by treaty 
or by EU law.  
 
An interim injunction is not available, h owever, if the requesting party has the opportunity to secure 
its claims by other means. Measures that may be ordered in an interim injunction include the 
following:  
 
an order to cease (and desist from) certain conduct,  
 
total prohibition from disposing of certain physical objects,  
 
• or court custody or administration regarding such objects, and  
 
in specific cases, inhibition of third parties (§  378 et seq.  EO). 
 
These  general rules on interim injunctions also apply in the context of intellectual property 
infringement, with some specifications:  
 IP/N/6/AUT/2  
 
- 9 - 
 
  Interim injunctions are available for securing claims, and for preservation of evidence, with regard 
to claims for  
 
regular i njunction ( Unterlassung ), 
remedy of infringement,  
adequate compensation,  
damages,  
profits made as a result of the infringement,  
 
with some limitations with regard to trademarks. If the court finds that it is likely for the fulfilment 
of the following claims to be at risk in case of commercial infringement, interim injunctions are 
available for claims for  
 
adequate compensation,  
damages, and  
profits made as a result of the infringement.  
 
Even if the fulfilment of a claim is not impeded or hindered, or if there is no danger of imminent 
irretrievable loss or damage, interim injunctions are available for  
 
regular injunctions and  
remedy of infringement  
(§ 151b PatG, § 41 GMG, §  34 MuSchG, § 56 MSchG, § 87c UrhG).  
 
11.  In what circumstances may such measures be ordered inaudita altera parte ? 
 
In the context of intellectual property infringement, interim injunctions may be issued with  regard 
to 
 
regular injunctions,  
remedy of infringement,  
adequate compensation,  
damages,  
profits made as a result of the infringement  
 
without even hearing the opposing party if  
 
• the requesting party would otherwise likely suffer an irretrievable loss or damage, or  
• there is a danger of evidence being destroyed  
(§ 151b(4) PatG, § 41 GMG, §  34 MuSchG, §  56(4) MSchG, § 87c(4) UrhG).  
 
If an interim injunction has been issued inaudita altera parte, the responding party can file a 
statement of opposition ( Widerspruch ) within 14 days of receipt, which has no suspensive effect. If 
such a statement has been filed, an oral hearing on the interim injunction must take place before 
the court decides on the opposition. The court can make it s decision dependent on the posting of a 
certain security (§ 397 et seq . EO).  
 
12.  Describe the main procedures for the initiation, ordering and maintenance in force 
of provisional measures, in particular relevant time -limits and safeguards to protect the 
legitimate interests of the defendant.  
 
An interim injunction can be initiated by filing a request with the competent court. The requesting 
party needs to state  
 
• the type of injunction desired,  
• the duration for which it wishes the interim inju nction to be in force,  IP/N/6/AUT/2  
 
- 10 - 
 
  • the exact claim it wishes to have secured, and  
• the facts on which the request is based (§ 389(1) EO).  
 
The court may order the requesting party to post a security if the adverse effects of the interim 
injunction on the responding pa rty can be remedied by payment of money (§ 390 EO). In the context 
of infringement of industrial property, the courts have held that a security needs to be posted in 
cases where it appears possible that the allegedly infringed right is void (cf. Stadler/Ko ller § 159b 
PatG, Rz 95).  
 
The court may reject the request or issue an injunction, which becomes effective as soon as the 
responding party has received it. The court 's decision on the interim injunction can be appealed 
within 14 days of its receipt. The appellee then has 14 days from the receipt of the appeal to file an 
answer (§ 402(3) EO). Upon request, the appeal can be granted suspensive effect (§  524(2) ZPO). 
The appellate court can approve the injunction, or restrict or lift it, in particular if e.g .  
 
its scope is wider than necessary,  
 
circumstances have changed so much since it was issued that it has been rendered 
unnecessary,  
 
the responding party has posted sufficient security to the court, or  
 
the requesting party 's alleged claim on which the interim injunction was based has been 
corrected or denied in a final decision (§ 399 EO).  
 
The requesting party is obliged to compensate the responding party for any and all adverse effects 
to its wealth ( Vermögensnachteile ) resulting from the interim injunction if  
 
the requesting party 's alleged claim for which the interim injunction was granted is denied in 
a final decision,  
 
the request otherwise presents itself as unjustified, or  
 
the requesting party fails to bring a lawsuit or commence en forcement within the relevant 
time-limit. 
 
If the interim injunction was obviously wilfully ( mutwillig ) obtained, the responding party can petition 
the court to impose a reasonable penalty on the requesting party (§  394 EO).  
 
13. Describe provisions governing the length and cost of proceedings. Provide any 
available data on the actual duration of proceedings and their cost.  
 
a.  Duration of civil proceedings  
 
There are various provisions in Austrian civil procedure aimed at discouraging parties from 
unreasonably prolonging court proceedings:  
 
If a party has given cause to extend a due date or to prolong a court hearing, the court may ex officio 
or upon request impose the costs thus incurred on the party (§ 142 ZPO).  
 
If the c ourt finds that a party could have  
 
o made certain statements of fact or  
o presented evidence  
 
earlier than it did (and that it has thus prolonged the proceedings), the court may ex officio or 
upon request impose on the party  IP/N/6/AUT/2  
 
- 11 - 
 
   
o the court fees on that party, even if it prevails (§ 44 ZPO), or  
 
o the costs thus incurred (§ 48 ZPO).  
 
If the court finds th at, after careful consideration of all circumstances, there can be no reasonable 
doubt that  
 
o evidence offered would considerably prolong the proceedings, and  
 
o the intention of the party offering the evidence was to protract ( verschleppen ) the 
proceedings,  
 
the court may ex officio or upon request refuse the taking of the evidence offered (§ 275(2) ZPO).  
Where the acceptance of a piece of evidence meets with the obstacle of uncertain duration, the court 
must upon request fix a due date after the expiry of w hich the proceedings are continued irrespective 
of any evidence not yet presented.  
 
Parties can only make new statements of fact or present new evidence until the end of the last oral 
hearing before the court of first instance (§ 179 ZPO).  
 
If an act by a  court is overdue, a party can file a request ( Fristsetzungsantrag ) with this court. This 
request asks the superior court to set a time limit to the inferior court for the performance of the 
overdue act. The inferior court then has four weeks from receipt of this request to finally perform 
the overdue act. If the inferior court complies with the request, it has to notify the requesting party 
of its compliance, and of the fact that the request will be considered withdrawn if the requesting 
party does  not state within 14 days that it wishes to further pursue the request. If the inferior court 
fails to comply with the request within four weeks, however, it must forward the request to the 
superior court, which is required to swiftly decide on it. Its dec ision on the request cannot be 
appealed (§ 91 GOG).  
 
Compared to many other countries, court proceedings in Austria are rather swift. In 2021, only 
2.2 % of all civil proceedings took longer than three years. The average duration of civil dispute 
proceedin gs before the Regional Courts, which serve as trial courts for IP infringement cases, was 
17.3 months. These numbers , however, are not specific to such cases,  which are often more complex 
and lengthier than the average civil litigation.  
  
b. Costs of civil litigation  
 
In Austria, court fees generally depend on the nature of the dispute and on the amount in dispute. 
This means the higher the amount of money that  the plaintiff claims in their lawsuit, the higher the 
court fees they have to pay to initiate court proceedings. The court fees are generally calculated as 
one lump sum per instance, i.e. they do not depend on factors such as the duration of the 
proceedin gs or on the number of court hearings. The current rates of court fees in civil proceedings 
are the following:  
  
Amount in dispute  Amount of court fees  
up to € 150  € 25 
more than € 150 and up to € 300  € 48 
more than € 300 and up to € 700  € 68 
more than € 700 and up to € 2,000  € 114  
more than € 2,000 and up to € 3,500  € 182  
more than € 3,500 and up to € 7,000  € 335  
more than € 7,000 and up to € 35,000  € 792  
more than € 35,000 and up to 
€ 70,000  € 1,556  IP/N/6/AUT/2  
 
- 12 - 
 
  more than € 70,000 and up to 
€ 140,000  € 3,112  
more than € 140,000 and up to 
€ 210,000  € 4,670  
more than € 210,000 and up to 
€ 280,000  € 6,227  
more than € 280,000 and up to 
€ 350,000  € 7,783  
More than € 350,000  € 4, 203 plus 1.2 % of the amount in 
dispute  
(§ 32 TP 1 GGG)  
 
Attorneys -at-law, patent attorneys, and their clients are generally free in their agreement on the 
price of legal representation. Quota litis  agreements, however, are not permitted, which means that 
a promise by a client to cede a share of the award to the ir attorney is unenforceable (§ 879(2) No.  2 
ABGB).  
 
For the duration of the legal dispute, each party bears their own costs of litigation, which, for the 
plaintiff, includes the court fees.  
 
The overall costs of litigation can be quite significant as the y, inter alia , include attorney 's fees, court 
fees, expert 's remuneration, and witness ' compensation. At the end of civil proceedings, the total 
costs of litigation incurred by both parties are allocated to them on a pro rata  basis depending on 
the degree to which they each have prevailed (§  40 et seq.  ZPO). It is therefore theoretically possible 
for a fully prevailing party to recovery all the costs of litigation from the opposing party. The 
reimbursement of attorney 's costs in court proceedings are calculated according to a tariff system 
based on the amount in dispute. The RATG regulates the maximum amount of the reimbursement 
of costs. Any costs incurred by the party vis -à-vis its own attorney (e.g. on the basis of a free 
agreement) exceeding this a mount shall be borne by the party itself, even if it has fully prevailed.  
 
 
(b)  Administrative measures  
 
14.  Reply to the above questions in relation to any administrative provisional measures.  
 
Enforcement of intellectual property rights is a matter of the civil and criminal courts and not one of 
the administrative bodies. This also applies to provisional measures.  
 
 
Special Requirements Related to Border Measures  
15.  Indicate for which goods it is possible to apply for the suspension by the customs 
authorities of the release into free circulation, in particular whether these procedures are 
available also in respect of goods which involve infringements of intellectual property 
rights other than counterfeit trademark or pirated copyright goods as defined in the TRIPS 
Agreement (footnote to Article 51). Specify, together with relevant criteria, any imports 
excluded from the application of such procedures (such as goods from another member 
of a customs union, goods in transit or de minimis imports). Do the p rocedures apply to 
imports of goods put on the market in another country by or with the consent of the right 
holder and to goods destined for exportation?  
 
16.  Provide a description of the main elements of the procedures relating to the 
suspension of the release of goods by customs authorities, in particular the competent 
authorities (Article 51), the requirements for an application (Article 52) and various 
requirements related to the duration of suspension (Article 55). How have Articles 53 
(security or e quivalent assurance), 56 (indemnification of the importer and of the owner 
of the goods) and 57 (right of inspection and information) been implemented?  
 IP/N/6/AUT/2  
 
- 13 - 
 
  17.  Describe provisions governing the length and cost of proceedings. Provide any 
available data  on the actual duration of proceedings and their cost. How long is the validity 
of decisions  by the competent authorities for the suspension of the release of goods into 
free circulation?  
 
18.  Are competent authorities required to act upon their own initiativ e and, if so, in what  
circumstances? Are there any special provisions applicable to ex officio action?  
 
19.  Describe the remedies that the competent authorities have the authority to order 
and any criteria  regulating their use.  
 
 
Criminal Procedures  
20.  Specify the courts which have jurisdiction over criminal acts of infringement of IPRs.  
 
At the first instance, the Regional Criminal Court ( Landesgericht für Strafsachen ) of Vienna has 
exclusive nation -wide jurisdiction over cases of criminal infringement of industrial property (§ 162(2) 
PatG, § 44(2) GMG, § 38(2) MuSchG, § 60a(2) MSchG). For criminal copyright infringement, 
jurisdiction at the first instance falls to the  Regional Court having territorial jurisdiction (§ 91(5) 
UrhG).  
  
The competent court at the second instance is the Higher Regional Court having territorial jurisdiction 
(§ 33(1) No. 1 StPO).  
 
21.  In respect of which infringements of which intellectual p roperty rights are criminal 
procedures and penalties available?  
 
With regard to all forms of criminal infringement of intellectual property, criminal charges can be 
brought against the infringer, but only in cases of intentional infringement. The owner or manager 
of a business can likewise be held criminally liable if they fail to hinder an employee 's or contractor 's 
infringement.  
In case of criminal infringement of industrial property, employees and contractors cannot be held 
criminally liable if they hav e committed the infringement at the orders of their employer or their 
contractual partner and if it could not have been reasonably expected of them to refuse committing 
the infringement due to their status of economic dependence (§ 159 PatG, § 42 GMG, § 35  MuSchG). 
With regard to copyright law, infringers who make unauthorized copies, talks or performances for 
their own use (or not for profit for somebody else 's own use) cannot be held criminally liable (§ 91 
Abs 1 UrhG).  
a.  Criminal infringement of patent s, utility models, and designs  
A patent prohibits any third party from  
 
offering or supplying means relating to an essential element of the invention for the use of 
the invention to persons other than those entitled to use the invention, without the consent 
of the patent holder,  
•  if the third party knows or it is obvious from  the circumstances that these means are 
suitable and intended to be used for the use of the invention (§ 22(3) PatG).  
Anybody who intentionally infringes a patent in this manner commits a criminal offen ce (§ 159(1) 
PatG). Equivalent provisions apply to infringement of utility models (§ 4a(1) and § 42(1) GMG).  
A registered design grants its holder the exclusive right to make use of it and to prohibit third parties 
from using it without his consent. The sa id use includes, in particular, manufacturing, offering, 
marketing, importing, exporting or use of a product in which the design is incorporated or to which 
it is applied, or the possession of the product for the said purposes (§ 4(1) MuSchG). Anybody who 
intentionally infringes a registered design in this manner commits a criminal offen ce (§ 35(1) 
MuSchG).  IP/N/6/AUT/2  
 
- 14 - 
 
  b.  Criminal trademark infringement  
The holder of a registered trademark has the right to prohibit third parties from  
 
using, in the course of trade an d without his consent, any sign which is identical with, or 
similar to, the trademark in relation to goods or services,  
o irrespective of whether or not such goods or services are identical with, similar to, or 
  dissimilar to those for which the trademark is registered,  
• if the trademark has a reputation in the national territory and if the use of the sign without 
due cause takes unfair advantage of, or is detrimental to, the distinctive character or the 
reputation of the trademark (§ 10(2) MSchG).  
 
Anybody  who intentionally infringes a trademark in the course of trade in this manner commits a 
criminal offen ce (§ 60(1) MSchG).  
c.  Criminal copyright infringement  
Anybody who, intentionally and without being authorized to do so, makes use of a  
 
literary or artistic work in a manner of exploitation reserved to the author,  
performance in a manner of exploitation reserved to the performer or the organizer,  
photograph  or a sound record in a manner of exploitation reserved to the producer,  
radio broadcast in a manner of exploitation reserved to the broadcaster,  
database in a manner of exploitation reserved to the producer, or  
press publication in a manner of exploitatio n reserved to the producer  
 
thus commits a criminal offen ce (§ 86(1) UrhG). Further criminal copyright infringements include 
infringements of computer programs (§ 90b UrhG), technical measures (§ 90c(1) UrhG), and 
identifying indications (§ 90d(1) UrhG; § 91(1) UrhG).  
 
22.  Which public authorities are responsible for initiating criminal proceedings? Are they 
required  to do this on their own initiative and/or in response to complaints?  
 
Criminal infringements of intellectual property are private prosecution offen ces 
(Privatanklagedelikte ), which means that only the injured party and not the public prosecutor can 
bring charges against the infringer or the other persons mentioned above (§ 159(5) PatG, § 42(5) 
GMG, § 35(5) MuSchG, §  60a(1) MSchG, § 9 1(3) UrhG).   
 
23.  Do private persons have standing to initiate criminal proceedings and, if so, who?  
 
Only the injured party has standing to initiate criminal proceedings.  
 
24.  Specify, by category of IPR and type of infringement where necessary, the penalties 
and other remedies that may be imposed:  
 
-  imprisonment;  
 
-  monetary fines;  
 
- seizure, forfeiture and destruction of infringing goods and materials and 
implements for their production;  
 
- other.  
 
a. Imprisonment and monetary fi nes 
The criminal sentences available to the court for infringement of the various intellectual property 
rights are quite uniform. Defendants can be sentenced to  
 IP/N/6/AUT/2  
 
- 15 - 
 
  generally, a monetary fine of up to 360 times their daily income (or, in case of copyright 
infringement, imprisonment of up to 6 months), or  
• in case of commercial infringement, imprisonment of up to two years  
(§ 159(1) PatG, § 42(1) GMG, §  35(1) MuSchG, § 60(1) MSchG, § 91(1) and (2a) UrhG).  
  
b. Seizure, forfeiture and destruction  
With regard to industrial property, equivalent provisions to those on remedy of infringement in civil 
proceedings apply to criminal proceedings (§ 161 PatG, § 42(6) GMG, § 35(6) MuSchG, § 60b 
MSchG).  
In criminal copyright infringement proceedings, the priva te prosecutor can request the court to order 
the infringing goods to be destroyed and the means infringement (i.e. the means exclusively or 
primarily used for it) to be made unusable (§ 92(1) UrhG). In order to secure these measures, the 
private prosecutor  can petition the court to seize the infringing goods and the means of infringement 
(§ 93(1) UrhG).  
c. Publication of the court 's decision  
Equivalent provisions to those on the publication of the court 's decision in civil proceedings  apply 
to criminal pro ceedings (§ 161 PatG, § 42(6) GMG, § 35(6) MuSchG, § 60b MSchG, § 91(4) UrhG).  
d. Pursuit of civil claims in a criminal trial ( Privatbeteiligung ) 
It is worth noting that Austrian criminal procedure allows victims, i.e. persons adversely affected by 
crimina l conduct, to bring civil claims against the defendant in criminal court (§ 65(1) and § 67 
StPO).  
 
25.  Describe provisions governing the length and any cost of proceedings. Provide any 
available data on the actual duration of proceedings and their cost, if any.  
 
As in civil proceedings, if an act by a court is overdue, a party can file a request ( Fristsetzungsantrag ) 
with the court. This request asks the superior court to set a time limit to the inferior court for the 
performance of the overdue act.  The inferior court then has four weeks from receipt of this request 
to finally perform the overdue act. If the inferior court complies with the request, it has to notify the 
requesting party of its compliance, and of the fact that the request will be cons idered withdrawn if 
the requesting party does not state within 14 days that it wishes to further pursue the request. If 
the inferior court fails to comply with the request within four weeks, however, it must forward the 
request to the superior court, which  is required to swiftly decide on it. Its decision on the request 
cannot be appealed (§ 91 GOG).  
 
Criminal proceedings in Austria are very swift by comparison. On average, criminal proceedings 
before the Regional Courts only took 4.2 months in 2021. These numbers , however, are not specific 
to IP infringement cases, which are often more complex and lengthier than the average criminal 
proceedings.  
 
 
__________