"Made in Austria" – How reliable is information about origin?

In the past, Austrian case law had to deal with “designations of origin” both from a competition law and from a criminal and trademark perspective. In March of this year, for example, there were house searches at a company in Austria because it was suspected that protective FFP2 masks manufactured in China had been relabelled and sold as “Made in Austria”.

The specification of the country of manufacture or the place of manufacture is not mandatory under law in Austria. The Austrian legal system does not contain any specific rules for the use of designations of origin such as “Made in Austria”. However, a violation of the UWG (law against unfair competition) is conceivable, which can lead to injunctive relief and claims for damages, among other things. If the misleading party acts with intent, this can also be relevant under criminal law.

It can be derived from these rulings that special caution is required not only when using explicit indications of origin (such as “Made in .....”). A false presentation can also be created by the use of foreign languages, country colours or flags.

The degree of processing depth in Austria is decisive for the permissibility of labelling products as “Made in Austria”. Accordingly, simple packaging processes or the affixing of labels alone are not suitable for designating a product as “Made in Austria”. If a product contains the statement “Made in Austria”, market participants can therefore assume that this was actually produced in Austria.

In the case of trademark law matters, the courts usually have to assess whether a mark can be understood as geographical information and is therefore excluded from registration as a trademark. This is affirmed by the highest court if the geographical information is known to the participating public and can be considered as an indication of origin in business transactions, because the participating public establishes a connection between the place or the area and the designated product and obviously assumes that the product is closely connected to it. Consequently, a local or area designation is excluded from trademark protection if the relevant public can see in it, for example, a reference to a possible place of manufacture of the goods or to the place of origin of the raw materials of the goods.

With the justification that the wording “KITZ” awakens the impression among the target public (tourism industry, specialist trade) that the goods (in particular garments, headgear, etc.) could be associated with the region/city of Kitzbühel, the registration of the word marks “kitzCappis” and “kitzBeanies” as well as “KITZ” was rejected (Vienna Upper Provincial Court, 33R73/20b).

Autor: Elisabeth Forstner
Autor: Rupert Kreuml