Designs and Models
– Design Protection Law 1990, in force since January 1, 1991, as amended up to Federal Law published in the Federal Law Gazette I No. 37/2018.
Membership in International Conventions
– Paris Convention, Stockholm Act.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille), since January 13, 1968.
– Convention Establishing the World Intellectual Property Organization (WIPO), since August 11, 1973.
– Locarno Agreement Establishing an International Classification for Industrial Designs, since September 26, 1990.
– WTO’s TRIPS Agreement, since January 1, 1995.
Applicant: the creator of the design or his legal successor.
Applicants not living in the country: must appoint a representative residing in Austria.
Object of design protection: exemplary embodiment of the appearance of an industrial product or parts thereof (except appearance dependent of technical function).
Form of application: open or under sealed cover which is opened eighteen months after the priority date at the latest.
Novelty: a design is new if before the application or priority date no identical design (different only in immaterial details) has been made available to the public in the normal course of business within the EEA (European Economic Area). However, disclosure of a design by the designer or his successor in title within twelve months prior to the priority date of the application shall not be taken into consideration.
Series applications: up to fifty designs may be combined in one application provided they fall within the same class of goods.
Priorities: priority term of six months.
Filing Office: Austrian Patent Office.
Filing requirements for an application (to be sent to resident representative):
1. Power of attorney (no legalization required), may befiled later;
2. Drawing (max. 29.7 x 21 cm) or photo (max. 21 x 14.8 cm) in color or in black and white of the design or model in triplicate; up to 10 views per design are permitted;
3. A description of the design (not compulsory);
4. If priority is claimed: indication of country, dateand filing number of basic foreign application.
Electronic filing: available.
For a change of name: an extract from the Commercial Register (or equivalent). The document must show both the former and the new name (no legalization required).
For a change of address: no document is required.
Examination: only a formal examination; no examination as to novelty or with respect to double-protection.
Opposition: not provided for.
Granting and Protection
Registration: the Austrian Patent Office enters the design in the Official Register.
Publication: the registered design is published in the Austrian Design Gazette.
Beginning of protection: the protection begins on the day of the registration of the design.
Delivery of document: the registration certificate is issued in paper format only.
Duration: up to twenty-five years from the end of the month of application.
Extension – renewal: the first five-year period can be extended four times by five years by paying renewal fees which can be paid one year before the end of the period of protection at the earliest and with fine of 20% six months after the end of the period of protection, at the latest.
Marking: is not required.
Working: no obligation to use.
Licenses: possible, may be recorded on the Register of designs.
Assignment: the right to the design application as well as the design right can be assigned for all or individual goods of the list. Assignment should be registered.
Modification of Protection after Registration
Nullification: annulment proceedings against a design right can be commenced if the design right lacks in novelty and individual character or falls under the prohibition of double-protection on request of a third party with the Patent Office. Actions for nullification: see as for “patents“.
Reinstatement of invalidated designs: possible; the same rules apply as to “patents“.
Infringement: any person injured with respect to his design rights or anticipating such infringement may make a claim for cessation, removal, publication of the judgment, consideration, compensation for damages, restitution of profit, rendering of accounts, and information regarding the origin and channel of distribution of the infringing goods or services. Action for infringement and preliminary injunctions respectively must be filed with the Commercial Court, Vienna; in the case of punishable infringement, the District Criminal Court, Vienna, is competent.