David vs. Goliath – Always Against the Little Guys

America First – or how domestic businesses are being bullied

Austria is a beautiful country in Europe, with wonderful nature and a broad, well-established small and medium-sized business sector. Many small and medium-sized enterprises belong to it, forming the solid backbone of our domestic economy. The majority of these businesses produce for the domestic market or for other European countries. This includes, for example, the craft sector with its diverse range of products and the retail sector, which brings these products from the craftspeople to the customer. A symbiosis that benefits both sides. All in all, a well-functioning ecosystem.

The miracle of nature: Swiss stone pine

In Austria, domestic wood has been worked with for centuries. In Tyrol, Swiss stone pine is particularly deeply rooted in everyday life. It looks like the little pine trees children draw in kindergarten. Craftsmen use it for construction, and artists create works of art from the natural raw material. It is used as a pillow filling and shaped into balls for decanters. It is simply versatile and can no longer be imagined without it in our everyday lives. And it has been this way for hundreds of years.

Justice was abused to sue a small online shop

This is how, years ago, a two-man business from Tyrol started carving and selling small Swiss stone pine pendants in the shape of a pine tree. A 100 percent natural product that is so pure that a child can easily put it in their mouth without immediately ending up in the hospital with poisoning. The Tyrolean Elmar Frischmann, owner of an online shop, also became aware of this product. For years, he has been selling products from the Alpine region through his shop 4betterdays.com. This includes wooden furniture, pillows, toys, and many other products that are preferably made from Swiss stone pine. Now, the company 4betterdays.com was sued by an American chemical giant over this little Swiss stone pine tree, because the shape and purpose of the Swiss stone pine pendant were alleged to be a copy of the disposable air freshener, which also has the artificial shape and silhouette of an abstract pine tree.

Where does the right of prior use begin, and where does design protection start?

The chemical company with its disposable product argues, “this Swiss stone pine tree threatens our sales figures in Europe and around the world; it must disappear.” With the help of a specialized team of lawyers, the Swiss stone pine tree was successfully removed from the market by the Vienna Commercial Court through an interim injunction. It is frightening how this almost perverse corporate philosophy is now being used in our courts to attack trade. In favor of these foreign companies that do not even create real jobs in our country, pay taxes, or otherwise contribute positively to our economy. The best examples here are Amazon, Facebook, or other internet giants that have their corporate headquarters in tax havens and only know the words tax and labor law from Wikipedia, if at all. Of course, it costs companies a lot of money and effort to develop logos, fonts, and products and bring them to market to create a unique selling point. The Design Protection Act regulates many aspects that primarily govern and enforce this right for our domestic companies. But how can it be that the shape of the pine tree is so protected that we are no longer allowed to use it?

Swiss stone pine miracle vs. chemical tree

The Vienna Commercial Court ruled in favor of these corporations; the small internet platform 4betterdays.com must now pay. Not only the costs of the proceedings, but also a half-page public apology in the Sunday edition of the Kronenzeitung as well as an official apology on its own website. According to Managing Director Elmar Frischmann, the costs so far amount to over 40,000 euros. Even for a company, this is an enormous financial loss. One could also call the whole thing the “miracle of Vienna.” What will happen next for Austrian e-commerce? Are we in danger of seeing the budding Austrian online trade locked back in the barn at its very first steps? Politicians and industry representatives throw around the buzzwords digitalization and online trade, but there is nothing behind these statements from business and politics. Yet the digital transformation is in full swing, and we will have to stand at the back by court order.

It is now called David against Goliath in Tyrol

Mr. Frischmann has now taken up the fight against this injustice. He is actively campaigning for better regulation of online trade. According to his own statement, there should be clear regulations from the political side for the much-demanded “digital home” and better protection for domestic companies. This is so that the required implementation of digitalization can actually be carried out and so that many people’s fears of digital trade and the use of the internet as a presentation tool can be removed. This time, a medium-sized company was affected. But what if a small family business is sued by a foreign brand? Justice in Vienna seems to prefer “America First” over applying domestic rights of prior use. It is a serious case in Austria, but one that will quickly make the rounds if more of these cease-and-desist lawyers flood the country with their letters after they have now had a taste of blood. Our well-intentioned, not entirely ironic tip is: If you are a manufacturing business, you should check out their products. It could be that you are currently violating applicable law without knowing it.

The earth is flat, and today give us our daily tree

When we started utilizing the benefits of Swiss stone pine in all its diversity in Austria, many still thought the earth was flat. Apparently, this false worldview is still anchored in an antiquated way of thinking in the dusty courtrooms in Vienna. When America calls, you must stand at attention and do what you are told. No matter whether this destroys the domestic economy or not. That would then be the beginning of the end for Austrian e-commerce, which—believe it or not—is currently more or less non-existent.