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- CHAPTER FOUR -PROTECT YOUR KNOW-HOW AND IPIIntroductionIndustrial property protection in Austria deals with subjective rights to intellectual property.The proprietor of an intellectual property right is entitled to exclude third parties from theregulated use of this right, or claim an appropriate equitable remuneration.In Austria, the principle of territoriality, codified in article 34 of the Act on InternationalPrivate Law, is relevant to the protection of intellectual property rights. According toparagraph 1 of article 34, the coming into existence, content and expiry of immaterial goodsare to be determined by the jurisdiction in which their use and/or infringement takes place.Holders of intellectual property rights acquired in Austria are protected only within Austria.Intellectual property covers the fruits of commercially exploitable and entrepreneurialactivities, as well as the protection of marks. The rights exist in various forms and areregulated in a number of legal acts. These acts are the subject matter of the followingcommentary and will be discussed in turn.II Competition LawCompetition law is extensively regulated by the Unfair Competition Act. Competition lawensures that anyone who takes part in trade and commerce with the aim of promoting his orher own self-interest to the disadvantage of other competitors, does so without the use ofillegal, unethical or unfair means.A breach of intellectual property rights entitles the holder of these rights to claim damagesand such claims, as well as applications to cease use and injunctions can be brought in theAustrian Commercial Courts. Where no enterprise exists or the enterprise is not domiciled inAustria, an action must be started at the place of the defendant’s permanent residence.Failing this, local jurisdiction is passed onto the defendant’s temporary domicile and in anyother case, it is with the place of the original infringement.III Trademark ActThe aim of the Trademark Act is to distinguish the goods or services of one enterprise fromsimilar goods or services of another. A trademark makes known the origin of goods orservices, or may serve to individualise a particular product.It is a distinguishing mark that enjoys formal protection once registered in the TrademarkRegister. Contrary to other marks such as a company’s name, a trademark is transferable andit can be separated from its founder. It is the individualising function of the trademark,rather than its outer appearance, that is protected by this legal area.Trademarks fulfil the individualising function when they can be distinguished from othermarks. The ‘distinctiveness’ required for a trademark may be of itself or acquired throughcommercial acceptance. Distinctiveness is exhibited when the mark can demonstrate arelatively high level of individuality, such as that found with few names and ‘fantasy’ pictures.Some terms that lack this high level of individuality and have been accepted into everydaylanguage, may, nevertheless, be recognised as distinguishing marks. However, ciphers,numbers, unpronounceable combinations of letters as well as generic names and descriptivestatements lack distinctiveness.- 35 -