Maria-Theresia Strasse 24, A-6020 Innsbruck, Austria
Contact: Dr. Stefan Kofler
Tel: 43.512.57.18.11
Fax: 43.512.58.49.25
Email: stefan.kofler@lawfirm.at
Website: www.greiter.lawfirm.at

 

Austria Country Report

Case Report:
Topic:	Use of the plaintiff' s trademark as metatag on the defendants's homepage
Where:	Austrian Supreme Court, Vienna
When:	December, 2000
What happened:	The plaintiff is the registered owner of the trademark "Nuntec-Interstahl" and is trading under this name. The defendant used the trademark "Nuntec-Interstahl" as metatag on the homepage. This had the effect that internet users when using a search enginge were directed to the defendant's homepage instead of the plaintiff's homepage. The plaintiff therefore claimed that the defendant has to refrain from using the trademark "Nuntec-Interstahl" as metatag in the sources of their homepage. The defendant argued that the plaintiff was one of their customers. Furthermore, the plaintiff had purchased patents from the defendant. Therefore, the defendant would have a justified interest to inform people on their homepage that the plaintiff is using inventions of the defendant. As the defendant is making reference to the plaintiff's name "Nuntec-Interstahl" on their homepage, as Nuntec-Interstahl belongs to their customers and purchased patents from the defendant, it would be justified to also use the name "Nuntec-Interstahl" as metatag. The Austrian Supreme Court fully followed the arguments of the defendant and dismissed the plaintiff's claim. As there was a business relationship between the plaintiff and the defendant, the defendant has a justified interest to inform internet users thereof. For this reason, it is also justified to use the plaintiff's name "Nuntec-Interstahl" as metatag, even if this name is a protected trademark for the plaintiff.
Case Report:
Topic:	"Internet for free"; no competition between internet provider and telephone operator;
Where:	Austrian Supreme Court, Vienna
When:	September, 2000
What happened:	The plaintiff is an internet provider giving access to internet users; for this service, the internet users have to pay a fee to the plaintiff. The defendant is a telephone operating company. The defendant offered internet access "for free" under the condition that a telephone contract is concluded between the customer and the defendant. The free internet access therefore was given as additional service for the telephone contract without charging additional fee for it. The plaintiff claimed under the Austrian law prohibiting competitors to grant free premiums in connection with the distribution of goods or services. The Austrian Supreme Court dismissed the claim. The court found that there is no competition between an internet provider on the one hand and a telephone operating company on the other hand. As only "competitors" and certain consumer protection associations may claim under the Austrian Act against unfair competition and as the plaintiff does not belong to any of these groups, the court found that there is no legal basis for the plaintiff's claim.