Austrian courts have sharpened their approach to intellectual property enforcement. In 2025, the Handelsgericht Wien (Vienna Commercial Court) and the Oberlandesgericht Wien (Vienna Court of Appeal) issued a series of rulings that tighten procedural standards for infringement claims. Companies relying on registered IP rights in Austria – without having reviewed their registration and monitoring posture – face a real risk of losing enforcement standing before proceedings even begin.
Austria's IP enforcement regime has shifted in a measurable direction: courts are applying stricter scrutiny to the scope of Nice classification (the international system of goods and services categories used in trademark application filings) and to evidence of genuine commercial use. Rights holders must demonstrate active, documented use of their marks within Austria's territory to sustain an infringement claim. The practical deadline for companies to audit their IP portfolio and update registration records is immediate – any pending or planned enforcement action requires a use-evidence file before proceedings are lodged.
This alert explains what has changed, which businesses are directly affected, and the specific steps international companies should take now.
What has changed and when it took effect
Two shifts in court practice define the current environment. Both became consistently visible in Austrian court decisions from mid-2025 onward.
Stricter use requirements in infringement proceedings. Austrian intellectual property legislation has long required genuine use of a registered trademark as a condition for maintaining enforcement rights. Courts in Austria have now raised the evidentiary bar. A rights holder must present concrete proof of commercial use – invoices, marketing materials, distribution records – covering the specific goods or services listed in the original IP registration. Broad or speculative use evidence is routinely rejected at the admissibility stage.
In practice, this means that a trademark application filed several years ago, where the Nice classification was drafted broadly to cover hypothetical product lines, now creates vulnerability. If the mark is not actively used across the registered classes, the opposing party can raise a non-use defence. Courts have accepted this defence with increasing frequency, effectively stripping enforcement rights mid-proceedings.
Raised threshold for preliminary injunctions. Under Austria's civil procedure rules, a rights holder may seek a einstweilige Verfügung (preliminary injunction) to halt an infringement on an urgent basis. Historically, Austrian courts granted such measures with relative speed when a prima facie case existed. Recent decisions indicate that courts now require a more detailed showing of irreparable harm and urgency. A delay of more than a few weeks between discovery of an infringement and the filing of an application may be interpreted as evidence that the urgency threshold is not met. The window for acting is shorter than many international clients expect.
Separately, opposition proceedings before the Österreichisches Patentamt (Austrian Patent Office) have seen procedural updates that affect deadlines and the admissibility of evidence submitted after the initial filing window. These changes affect both trademark opposition and cancellation procedures.
For companies with AI-related IP assets, the intersection of these enforcement shifts with Austria's obligations under the EU AI Act creates an additional layer of complexity. Our analysis of AI law and technology regulation in Austria covers how AI-generated content and AI-assisted products interact with IP registration and enforcement obligations.
Who is affected and the threshold criteria
The following business categories face direct exposure from these developments.
International brand owners with broad Austrian registrations. Any company that filed a trademark application in Austria. or designated Austria through a Madrid Protocol application. using wide Nice classification categories should treat this alert as directly applicable. The risk is highest where commercial activity in Austria is limited or concentrated in a narrower subset of the registered classes.
Technology and software companies. Austrian courts have specifically examined the scope of software and digital services marks. Companies with registrations covering class 42 or adjacent technology classes, where product lines have evolved since registration, should review whether their current offering still corresponds to the registered description.
Consumer goods and retail businesses. Companies distributing goods through Austrian retailers or e-commerce channels are subject to the use-evidence requirements at the retail class level. Distribution through third-party channels does not automatically constitute use of the mark in the manner courts now require.
Rights holders currently in or preparing enforcement proceedings. For any company that has identified an infringement in Austria and is assessing whether to file an infringement claim, the timeline pressure is acute. Delays in filing – particularly beyond four to six weeks from discovery – carry real procedural risk under the updated preliminary injunction threshold.
The threshold criteria are: (1) the company holds an Austrian or EU-wide trademark, design right. Alternatively. Patent with effect in Austria. (2) the right covers goods or services for which the company operates or distributes commercially in Austria. and (3) the company either plans to enforce the right or needs to defend against a non-use cancellation challenge.
To receive an expert assessment of your IP enforcement position in Austria, contact us at info@ferrazwhitmore.com.
Immediate actions for international companies
The following steps should be addressed without delay.
- Audit your Austrian IP registrations against actual use. For each trademark registration or designation covering Austria, map the Nice classification categories to documented commercial activity. Identify classes where use is absent or thin. Prepare a use-evidence file – invoices, advertising records, website evidence with Austrian nexus – for each class you intend to enforce.
- Review the breadth of existing registrations. Where registrations include classes not covered by current commercial activity, assess whether to voluntarily narrow the specification or accept the non-use risk. Narrowing through a partial surrender is possible under Austrian intellectual property legislation and removes the target for a non-use challenge.
- Assess pending enforcement matters against the new urgency threshold. If your company has identified an infringement in Austria and has not yet filed, calculate the time elapsed since discovery. If it approaches four weeks or more, legal counsel should prepare a specific showing of continuing harm and urgency before lodging a preliminary injunction application.
- Update opposition proceedings strategy. If you are monitoring new trademark applications filed by third parties and considering opposition proceedings before the Austrian Patent Office, confirm that your evidence is ready for submission within the statutory window. Late-filed evidence is now more consistently excluded.
- Review cross-border portfolios for Austrian exposure. Companies holding EU trademarks that cover Austria through EUIPO registration should apply the same use-evidence analysis. A successful non-use challenge in Austrian proceedings can have consequences for the EU-wide right if use in the EU as a whole is disputed.
Practitioners advising international companies in Austria note that the combination of stricter use requirements and a tighter urgency threshold creates a compressing window. Rights holders who wait for a dispute to crystallise before assembling their evidence file are consistently at a disadvantage. The time to build that file is now, not after an infringement is discovered.
For a broader view of IP registration and enforcement strategy across the Austrian and EU system, our detailed resource on intellectual property law in Austria provides the procedural and strategic context. For comparison with developments in the Iberian market, the related alert on IP enforcement developments in Portugal covers parallel shifts in Portuguese court practice.
About Ferraz & Whitmore
Ferraz & Whitmore is an international law firm based in Lisbon, advising business clients across 46 jurisdictions. Our intellectual property practice covers trademark registration, IP enforcement, opposition proceedings, and infringement claim strategy across European and international markets. Sophie Kellner leads the firm's IP and technology practice, advising technology companies, consumer brands, and institutional investors on IP portfolio management and enforcement in Austria, Germany, Switzerland, and across the EU. The firm's dual foundation in Portuguese civil law and English common law tradition allows us to support clients whose IP assets cross multiple legal systems. As a law firm with an active Austria practice, we work alongside local counsel before the Austrian Patent Office and Austrian courts. Engaging a lawyer in Austria with cross-border IP experience is especially important when enforcement strategy must align with EU-wide portfolio decisions. To discuss your situation, contact us at info@ferrazwhitmore.com.
Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.