"Commercial effect" as the test for online trademark infringement across borders: the Austrian Supreme Court's Golden Hill decision

In a recent decision, the Austrian Supreme Court considered when the use of a sign on a website, booking platforms, and social media amounts to the use of the sign in Austria and infringement of a trademark protected in that country.

In the decision issued on 27 April 2026, the Court reaffirmed the Austrian and German case law holding that trademark infringement requires a domestic connection going beyond mere website accessibility – a requirement addressed through the concept of "commercial effect". The court also relied on the CJEU's standards for assessing whether a commercial activity is directed at consumers in a particular jurisdiction.

Background

The plaintiff operates a holiday accommodation business in Austria, under the name "Golden Hill", registered as an Austrian trademark. The defendant, an Italian entrepreneur based in South Tyrol, Italy, began renting out luxury holiday apartments in January 2024 under the identical name, advertising via the website www.golden-hill.it, Booking.com, airbnb.de, and social media.

After an unsuccessful cease-and-desist letter, the plaintiff asked the first instance court to enjoin the Italian proprietor from using the sign "Golden Hill" in Austria for services relating to accommodation and catering. The court granted the request, finding a commercially relevant effect of the advertising on the Austrian market in Austria. The court of appeal reversed, holding that the inherently cross-border nature of the tourism sector was insufficient to establish market impact in Austria. The court emphasised that evidence of concrete market effects, such as a user survey, was required, to demonstrate that the relevant groups accessed the defendant's website or booking platforms to a significant extent and that the use of the "Golden Hill" mark had generated a "commercial effect" (customer acquisition) in the country. Subsequently, the Supreme Court reinstated the injunction.

The legal framework: criteria for "commercial effect"

The central question was whether the defendant's online advertising constituted use of the plaintiff's mark in Austria. The court addressed this through the concept of "commercial effect" – the requirement established in case law that online advertising by a foreign entity must have a more than negligible impact on the domestic market, going beyond mere website accessibility, before it can be treated as domestic trademark use.

The Supreme Court reviewed the relevant case law and identified the following criteria.

• General rule: Mere accessibility of a website in Austria is insufficient (Wintersteiger III, 4 Ob 82/12f; CJEU, L'Oréal v eBay, C-324/09). The question is whether the offer is also directed at Austrian consumers, which national courts must assess case by case.
• "Commercial effect" assessed objectively: "Commercial effect" does not need to be demonstrated through a user survey or evidence of actual bookings. It is sufficient that a more than negligible impact on the domestic market can realistically be expected based on the circumstances (Wintersteiger III).
• Balancing the competing interests of the parties involved: The key question is whether the domestic impact is an "unavoidable consequence of technical or organisational circumstances" beyond the foreign advertiser's control, in which case no infringement takes place, or whether the advertiser intentionally derives benefit from the accessibility of its content within the domestic jurisdiction, for example by creating ordering possibilities from the domestic territory or by delivering to the domestic territory as well (German Federal Court of Justice in OSCAR, I ZR 75/10 and Club Hotel Robinson, I ZR 222/17). In the latter case, there is trademark infringement.
• Specific indicators: A non-exhaustive list of indicators of domestic "commercial effect" may be derived from recent Austrian case law (paras. 40-41 of the Golden Hill judgment):
  • top-level domain;
  • language of the website;
  • website content;
  • economic orientation of the business; and
  • disclaimer stating that an offer is limited to certain markets (if it is not contradicted by the website's content or the company's actual conduct).
• Territoriality of a trademark and its limits: The Supreme Court adopted the CJEU's approach in Tradeinn, C-76/24 (judgment of 1 August 2025). While trademark protection is generally limited to the Member State of registration, the trademark holder may prohibit online advertising that is directed at consumers within that state, even if the advertiser, server, or goods are located abroad. Otherwise, businesses could bypass national trademark rules by operating from outside the territory.
• Orientation (targeting) criteria drawn from case law in consumer matters: On the question of what constitutes orientation toward consumers in a certain territory, the Supreme Court references the Tradeinn decision, which, by analogy, relies on the CJEU's case law in consumer matters (Pammer and Hotel Alpenhof, C-585/08 and C-144/09), endorsing the following criteria:
  • international nature of the activity;
  • mention of itineraries from other Member States for going to the place where the trader is established;
  • use of a language or currency other than that of the Member State of establishment, with the possibility of making and confirming the reservation in that other language;
  • mention of telephone numbers with an international dialling code;
  • outlay of expenditure on an internet referencing service to attract foreign consumers;
  • use of a top-level domain other than the trader's home state; and
  • explicit reference to an international clientele composed of customers domiciled in various Member States.

Application to the facts: "commercial effect" established through targeting of Austrian consumers

Applying the established criteria to the Golden Hill case, the Supreme Court concluded that the defendant had intentionally directed its offer toward the Austrian market. The Court further determined that the use of the Golden Hill trademark was not merely an unavoidable consequence of technical or organisational circumstances. Additionally, the Court found that the use of the contested mark on the internet was likely to have more than a negligible impact on the domestic market, thereby establishing a "commercial effect" in Austria.

Several factors pointed clearly that the defendant, based in Italy, targeted Austrian consumers:

• the use of German as the default language, without any disclaimer from which it would follow that the offer does not apply to the Austrian market;
• simple booking options via platforms widely used in Austria;
• English-language branding, suggesting international ambitions ("Golden Hill", "enjoy", "timeless", "luxury");
• an express welcome to "guests from all over the world"; and
• the publication of an article about the defendant in the Austrian trade magazine WellHotel that featured the defendant's business.

The Supreme Court noted that the Italian top-level domain (.it) and the fact that German is an official language in South Tyrol were of little relevance in the context, since a potential guest would read those not as signals limiting the market but simply as indicators of the trader's location.

Comment

The Austrian Supreme Court walked a fine line when assessing whether a business could be considered to be "using" its mark in another country. Although the defendant could claim that in its home country (Italy), in the part adjacent to Austria, it was understandably doing business in German, the Supreme Court nevertheless found sufficient indicators of targeting the Austrian market. The fact that the Court reached this conclusion by relying on criteria developed by the Court of Justice of the European Union gives this decision relevance that goes beyond the confines of a single jurisdiction. Businesses in Europe need to carefully assess whether their online presence produces a "commercial effect" in markets where third-party trademarks are registered, so as not to face the possibility of being found to be infringing such trademarks.