Preliminary injunctions
Austria
In Austria, PI proceedings are a potent tool for trade mark owners to rapidly stop infringements. Despite their temporary nature, PIs often pave the way for a lasting resolution of conflicts (eg through subsequent negotiations). Also, they play an important role if there is a lack of evidence – preservation of evidence may be requested.
There is no obligation to send a cease and desist letter to the defendant beforehand.
Ex parte PIs are granted only in rare cases; usually PI proceedings are inter partes. Both are often mere written proceedings (one or two rounds of pleadings), but in some cases an interim hearing might also take place. PI proceedings may be subject to up to three appeals.
Urgency
There is no 'urgency' requirement for a PI to be granted.
Irreparable harm
In general, there is no requirement that irreparable harm would result for a PI to be granted. However, a PI will only be granted on an ex parte basis to prevent an irreparable harm or a threat of destruction of evidence.
Urgency
There is no 'urgency' requirement for a PI to be granted.
Irreparable harm
In general, there is no requirement that irreparable harm would result for a PI to be granted. However, a PI will only be granted on an ex parte basis to prevent an irreparable harm or a threat of destruction of evidence.
Remedies
- PIs are usually aimed at injunctive relief. Main proceedings need not already be pending or applied for at the time of the request for a PI; 'standalone' PI requests are common. However, if a 'standalone' PI is granted, the court orders a deadline (usually four – six weeks) to initiate main infringement proceedings. If, within such a deadline, main infringement proceedings have not been initiated, the PI defendant can request that the PI is lifted.
- PIs may be issued both to secure the claim itself (in particular a claim for injunctive relief) and to secure evidence.
Evidence and level of proof
- In PI proceedings, a less strict standard of proof than the general one applies. The applicant must 'make a credible claim' ('glaubhaft machen', 'bescheinigen') of an actual or threatened infringement and that their IP right in question is valid.
Ex parte injunctions
- Ex parte PIs may be issued at the request of the party at risk without the court hearing the opposing party if the party at risk would likely suffer irreparable damage as a result of a delay, or if there is a risk that evidence will be destroyed. Although ex parte PIs are not granted very often, it is prudent to be prepared for – and aware of - the possibility.
- In Austria, protective letters cannot be submitted to the court where there is a risk of possible future PI requests.
Evidence and level of proof
In PI proceedings, a less strict standard of proof than the general one applies. The applicant must 'make a credible claim' ('glaubhaft machen', 'bescheinigen') of an actual or threatened infringement and that their IP right in question is valid.
Ex parte injunctions
- Ex parte PIs may be issued at the request of the party at risk without the court hearing the opposing party if the party at risk would likely suffer irreparable damage as a result of a delay, or if there is a risk that evidence will be destroyed. Although ex parte PIs are not granted very often, it is prudent to be prepared for – and aware of - the possibility.
- In Austria, protective letters cannot be submitted to the court where there is a risk of possible future PI requests.
Serving and enforcing the injunction
- If a PI is granted by the court, it usually becomes effective, and needs to be complied with, upon service on the defendant by the court. If a PI is not complied with, it may be enforced through the competent District Court (Bezirksgericht) with the possibility of fines being imposed for non-compliance.
Appeal opportunities
- Once a PI is issued, the respondent may either comply with it or file an appeal (Rekurs) within 14 days of service of the PI. Filing an appeal against the PI is the typical remedy for the respondent if they are in a good position to argue that the PI should not have been issued. The defendant may request the court to suspend the effect on the PI pending the outcome of the appeal, but it's rare that this will be granted. A response to the appeal may be submitted within another 14 days. The Higher Regional Court of Vienna decides on the appeal as the appeal court. Usually, an appeal against this decision (Revisionsrekurs) is possible within 14 days of service.
- In ex parte PI cases, the respondent may lodge an objection (Widerspruch) against the granting of an interim injunction. The objection must be lodged within fourteen days of service of the order. Such objection will be dealt with by the court of first instance, and a hearing is mandatory. Unlike 'classic' appeal proceedings, in proceedings regarding a 'Widerspruch' the parties are not prevented from introducing new evidence.