Unfair Competition Law, including „Advertising Law“ and Confidentiality Protection

The focus here is on „public morals“, and – though not intended in a literal sense – on purity. This is why we now speak of “unfair commercial practices.”

The Unfair Competition Law is seen as a part of industrial property rights and along with Anti-trust rules, as a part of Competition Law in the broad sense. The Unfair Competition Law (and Anti-trust Law) together aim to protect free and fair (in the past one said “not immoral” (sittenwidrig)), undistorted competition, which is of particular relevance in the fields of marketing (aggressive commercial practices, deception, interference, disparagement, exploitation, unfair advantage through illegal practices, etc.). For the most part, Unfair Competition Law is regulated in Austria by the Act Against Unfair Practices.

Through the Act Against Unfair Practices, the numerous advertising restrictions regulated in other laws, as well as prohibitions, are sanctioned, e.g. restrictions in the Austrian Tobacco Act, Pharmaceutical Drug Law, Health Claims Regulation, ORF-Act, Telecommunications Act (“ban on spam”), Audiovisual Media Services Act, Private Radio Act, and many more. Many other breaches of provisions through competitors may be prohibited through the Act Against Unfair Practices.

Expressly protected by the Act Against Unfair Practices are professional and commercial secrecy. The Unfair Competition Law shall protect general competition, competitors and customers respectively consumers from unfair conduct. („Schutzzwecktrias“).

In case of breach of the Act Against Unfair Practices, the concerned party, competitors, and also associations and institutions given plaintiff rights through the Act Against Unfair Practices, may, in particular, sue for cessation of the cessation of the infringing use, the removal thereof (under certain circumstances, also withdrawal), damages regardless of negligence or fault, and for publication of the judgement. The right to obtain an injunction can be enforced through preliminary injunction. The Act Against Unfair Practices also provides for statutory offences.

Important to note is that the statute of limitations for the right to obtain injunctive relief is 6 months from the date of breach and knowledge thereof by the plaintiff; the absolute statute of limitations is three years.

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