CMS Expert Guide on Preliminary Injunctions in IP in Austria

PIs can be filed to act against ongoing or imminent violations of copyright, trademarks, patents and unfair competition. The essential condition is the risk of first offence or repetition of the infringing act.

According to Austrian IP legislation, PIs can be granted to:

• secure claims for injunctions,
• removal,
• reasonable compensation,
• damages,
• and surrender of profits.

PIs can be issued to secure the claim itself and to preserve evidence. PIs securing monetary claims - are possible in cases of commercially conducted infringements if enforcement is at risk.

PIs can be issued even without the need to certify a risk to the claim or threat of irreparable damage. Only the existence of IP rights and their infringement must be certified. 

A prior out of court action, such as a warning letter, is not a legal requirement.  

However, in practice, sending a warning letter is advisable for the following reasons: 

• Costs: A warning letter can often avoid a costly legal dispute. 
• Time: A warning letter may lead to a quicker solution than court proceedings.
• Amicable settlement: It offers the opportunity to settle out of court.
• Proof of seriousness: It shows that the right owner is prepared to take legal action, which increases the pressure on the infringer to meet the demands.

No. There is no deadline and urgency is not a requirement.  However, the general limitation period should be observed (3 years).

PIs can usually be obtained within two to four weeks after filing the PI at court.

Proceedings for PIs are usually held inter partes with both parties participating. After filing a PI, the infringing party is usually given one to two weeks to respond, and the court decides whether to issue the PI immediately afterwards.

Suspension of PI proceedings can be requested upon agreement of all parties.
Suspension of proceedings due to the prejudicial nature of another legal dispute is inadmissible. However, the Austrian Supreme Court of Justice has recognised a suspension due to a pending preliminary ruling procedure before the ECJ.

Evidence submitted in PI proceedings is subject to a lower standard of proof. It is sufficient to convince the court that the facts presented are overwhelmingly likely to be true. Only means of certification evidence that can be presented to the court without significant effort is admissible. This excludes expert opinion (but not the submission of a private expert opinion) and oral witness examinations. Usual means of evidence are affidavits and documentary evidence. 

Yes. PIs can be issued ex parte if delay is likely to result in irreparable harm or there is a risk of evidence being destroyed. However, this is quite unusual in Austria. 

The applicant of the PI initially has to bear his own costs, including for appeal proceedings. If the applicant prevails in the main proceedings, they are entitled to reimbursement of the costs of the successful provisional proceedings. If the applicant is unsuccessful in the provisional proceedings, however, they are not entitled to reimbursement of costs for the provisional proceedings, even if successful in the main proceedings.

No - only if the resulting disadvantages for the opponent can be compensated by monetary damages and the applicant provides a security, which is determined by the court at its own discretion.

Yes, it is possible to appeal against a PI within two weeks after delivery. However, the appeal does not automatically suspend the PI. A suspension may be granted only upon request of the defendant if there is a legal ground for suspension and there is a risk of irreplaceable financial disadvantage.

The appeal court usually takes one to three months to decide the appeal. Depending on the presence of a significant legal question, the decision of the court of appeal can be contested within a further 14 days.

A PI becomes effective as soon as the PI request by the applicant is accepted by the court and delivered to the parties.

Fines of up to 100,000 euros per application per day may be imposed for non-compliance with the PI, in particular to obtain cease and desist. The penalties usually amount to several thousand euros per application; a new application can be made for each day of the violation.

Yes. If the PI is denied, its application proves to be unjustified or if the PI fails to comply with the time limit set for bringing the action or initiating execution, the applicant must compensate its opponent for all losses caused by the PI. The amount of compensation is determined at the court’s discretion.

If the PI was obtained maliciously, a penalty for malicious misconduct can be imposed on the applicant at the request of the opponent. 

If the PI has been granted in the provisional proceedings with legal effect, it shall remain in force until a different decision is made in the main proceedings.