Trademark application

General information

Trademarks are business identifiers that help to distinguish goods or services from each other. They enable consumers to identify the source of the offer.

To protect their trademark, companies must register it with the patent office. The trademark right comes into existence on the date of registration in the trademark register.

The trademark right shall expire ten years after the end of the month in which the trademark was registered. The protection can subsequently be extended indefinitely for a further ten years at a time.

Enterprises affected

Natural and legal entities who wish to identify their goods and services with trademarks in order to distinguish themselves from competitors and their goods or services.

Requirements

As a rule, all signs that can be represented graphically can be a trademark, provided they are capable of distinguishing the goods and services of one company from those of other companies.

A sign cannot be applied for and registered as a trademark in the abstract, but only in connection with those goods/services which it is intended to identify on the market.

Deadlines

There are no specific deadlines for registration.

Competent authority

Austrian Patent Office (→ ÖPA)

Procedure

Application options

• Online application trademark (→ ÖPA) (fast track or standard)
• Paper application trademark via mail
• Application by e-mail is not permitted.

For trademark applications on paper, the Form MA 1(→ ÖPA) can be used. A completion guide including a checklist is attached to the form. This makes it easier for applicants to fulfil the formal requirements.

Representation

If the applicant has his residence or place of business in Austria, the trademark may also be applied for without representation or the applicant may represent himself before the Nullity Division. If the applicant wishes to be represented, she/he may choose between professional representation (patent attorney or law firm or notary's office) or non-professional representation.

If the applicant is neither domiciled nor has a place of business in Austria, the applicant must be represented in the application procedure (either by a professional or a non-professional representative). In any case, they need professional representation in proceedings before the Nullity Division.

If the applicant's domicile or place of business is in the EEA or in Switzerland, an Austrian power of attorney for service is sufficient in any case.

In no case is representation required for the use of services and information.

List of goods and services

In addition to the trademark to be registered, the trademark application must always indicate the goods or services for which the trademark is intended to identify on the market. These products and services are to be classified into up to 45 subgroups, so-called "classes", according to the scheme of the Nice Classification (→ ÖPA)^{German text}.

The goods or services must be named in words (e.g.: Cl. 3: Perfumery, soaps, cleaning products, body and beauty care products). Preferably, the terms of the classification should be used. Goods/services not included therein are to be classified according to the explanatory notes to the individual classes. The indication of the class numbers alone is not sufficient.

The trademark examination procedure

This essentially consists of two procedural stages:

• Formality check
• Legality check

If the trademark meets the registration requirements, it will be entered in the trademark register under a serial number of registration and the applicant will receive a registration certificate. In addition, the trademark is published in the Austrian Trademark Gazette.

After the trademark has been registered, the abbreviation ® can be used in the course of trade. It serves as an indication that it is a registered trademark. Holders are obliged to provide third parties with information in this respect.

Required documents

For trademarks with graphic elements (words with upper and lower case letters, special fonts, figurative elements, colours, etc.), trademark images must be submitted.

One copy shall be included in the application form and five others - matching in size, representation, shape and colouring - shall be enclosed as attachments. These trademark images may be no more than 8 cm long and 8 cm wide. Please note that the trademark cannot be amended during the application procedure.

If the applicant wishes to be represented in the proceedings, a written power of attorney must accompany the application.

Costs and fees

Application costs single trademark

• on paper: 300 Euro
• online: 280 Euro

If the trademark protection is to be renewed, this can be done unbureaucratically by timely payment of the renewal fee (no application). The fees may be paid within one year before the end of the term of protection, but also within six months thereafter (grace period). If payment is made only within the grace period, the fee shall be increased by 20 per cent. The amount and due date of the renewal fee can be found online. You will need either the registration number or the file number of your trademark.

Further information

The trademark shall expire if

• the registration is cancelled due to a discrepancy
• the trademark is declared invalid and cancelled
• the renewal fee is not paid on time
• the trademark is renounced

Community trademark

Community trademark provides trademark protection which is valid throughout the European Union. An individual selection of countries (as in the case of the international trademark) does not exist in the case of the Community trademark. The European Union Intellectual Property Office (EUIPO) is responsible for the procedure.

A Community trademark is valid for ten years for the entire EU region and can thereafter be renewed without restriction for further periods of ten years each.

A Community trademark application can be filed directly with the Office for Harmonization in the Internal Market by mail, fax and electronically in German. The application form may also be filed with the Austrian Patent Office for forwarding to the Office for Harmonization in the Internal Market.

International trademark

An international trademark is registered centrally under the Madrid system. A prerequisite for an application for international registration is, among other things, that the trademark has already been applied for or registered as a national or Community trademark. Through the Madrid system, protection for the mark can be obtained for more than 120 contracting parties - the choice among these states and intergovernmental organisations (EU) is up to the applicant.

An application for international registration of a trademark previously applied for nationally must be submitted via the Austrian Patent Office, but an application based on a Community trademark must be submitted to the World Intellectual Property Organization (WIPO) via the EUIPO.

Further links

• Patent and utility model sheets, brand and pattern register (→ ÖPA)^{German text}
• Fact sheets of the Austrian Patent Office (→ ÖPA)^{German text}
• Forms and fees (→ ÖPA)^{German text}
• Nice classification (→ WIPO)
• ​​​​Online application trademark (→ ÖPA) (fast track or standard)
• European Union Intellectual Property Office (→ EUIPO)
• World Intellectual Property Organization (→ WIPO)
• eSearch plus (→ EUIPO)

Legal bases

• Markenschutzgesetz (MSchG)
• sections 22, 23 and 24 of the Patentamtsgebührengesetz (PAG)

Expert information

Trademark similarity search (→ ÖPA)

Link to form

• Trademark application - Form MA 1^{German text}
• Standard trademark online application^{German text}
• Fast track trademark online application^{German text}

Completion time

The average duration of the examination procedure is two to three months. For Fast track applications it's approximately ten days. Each correspondence extends this period.