AUSTRIA Law and Practice

Contributed by: Markus Fellner, Florian Kranebitter and Mario Burger, Fellner Wratzfeld & Partners

• designs; and

• domains.

It is not possible to transfer copyrights (Urheberrechte) and therefore a transfer of a copyright per se is not used as security. However, it is possible to grant security over rights under a licence to use a copyright. The most common form of security over intellectual property is a pledge.

Moveable assets

The most common form of security over movable assets is a pledge. A less commonly possibility is the transfer of title for security purposes (Sicherungsübereignung). A transfer, however, is not more advantageous than a pledge, as it is subject to the same perfection requirements as a pledge.

5.2 Form Requirements

The following forms are required. Shares

There is no specific registration or translation required.

Bank Accounts

It is necessary to consider whether terms and conditions of the bank account are applicable to the business relation with the customer as this may create prior ranking pledges. These pledges will have priority if previously established. Technically, an account pledge is a pledge of the receivables which the customer has in relation to its bank account. Consequently, the account pledge follows the rules of a pledge over receivables and must be perfected by notifying the bank of the pledge or adequate markings in the pledgor’s records and accounts (Buchvermerk).

Receivables

Fo the pledge or assignment over receivables, no legalisation, registration or translation is required.

Real Estate

To create a mortgage, the mortgagor and the mortgagee must enter into a mortgage deed (Hypothekarurkunde or Pfandurkunde). Further, the registration of the mortgage in the Austrian land register (Grundbuch) and the translation into German are required. To be admissible for registration in the land register, the signatures on that deed must be notarised.

Movable Assets

Creation of a pledge requires a pledge agreement (Pfandbestellungsvertrag) but there are no formal requirements in relation to the agreement. No legalisation, registration or translation is required. The requirements of perfecting a pledge depend on whether the asset is deemed movable or immovable.

IP Rights

To create a pledge over intellectual property rights, the pledgor and pledgee must enter into a pledge agreement. The pledge must be registered in the following specialised registers in order to perfect the pledge:

• patent register (Patentregister);

• trade mark register (Markenregister); or

• design register (Musterregister).

These registers are kept by the Austrian Patent Office (Österreichisches Patentamt).

5.3 Registration Process Registration of Securities

Under Austrian law only the pledging of real estate and intellectual property requires regis-