In Case C-170/12 Pinckney, on 11 April 2012, the French Cour de Cassation referred the following question for preliminary review with the Court of Justice (Case C-170/12)
Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, in the event of an alleged infringement of copyright committed by means of content placed online on a website,
– the person who considers that his rights have been infringed has the option of bringing an action to establish liability before the courts of each Member State in the territory of which content placed online is or has been accessible, in order to obtain compensation solely in respect of the damage suffered on the territory of the Member State before which the action is brought,
– does that content also have to be, or to have been, directed at the public located in the territory of that Member State, or must some other clear connecting factor be present?
Is the answer to Question 1 the same if the alleged infringement of copyright results, not from the placing of dematerialised content online, but, as in the present case, from the online sale of a material carrier medium which reproduces that content?
As excellently summarised by Stephen Vousden here, the Cour de Cassation is assuming two CoJ precedents need to be distinguished from Pinckney:
Case C-324/09, L’Oréal, which concerns the territorial scope of the EU’s trademark laws and revolves around websites ‘targeting’ consumers as opposed to merely being accessible to them; and
Cases C-509/09 and C-161/10 eDate Advertising and Martinez (‘Kylie Minogue’), in which the Court added the connecting factor ‘centre of interests’ for internet infringements of personality right. As I reported here, the Court of Justice in Wintersteiger confirmed that the connecting factor ‘centre of interests’ in Kylie Minogue and eDate Advertising only holds for infringement of personality rights in an internet context. Trademark violation is distinguished, on the grounds that rebus sic stantibus intellectual property rights are protected on a territorial basis. In Pinckney, which also concerns intellectual property, the Cour de Cassation moreover points out that the offending item was in fact a material carrier: a vinyl record, illegally compiling songs.
Plenty of factual elements therefore, complicating the finding of ‘place of the harmful event’ /damage under Article 5(3) Brussels I.