Posts Tagged Intellectual property rights

Jurisdiction for trademark infringement and passing off. Easygroup v Easyfly and ATR Aircraft

In [2020] EWHC 40 (Ch) Easygroup v Easyfly and ATR Aircraft the issue is the jurisdiction of the English court to hear claims of trade mark infringement, passing off and conspiracy against a Colombian domestic airline, its founder and chief executive, and a French aircraft manufacturer. As always the blog’s interest is not in the substantive issues concerning trademark and passing off, they do however make for interesting reading.

Nugee J considers the jurisdictional issues at 26 ff with respect to the first two defendants and with respect to the French defendant, in para 127 ff. Here the relationship between the EU Trade Mark Regulation 2017/1001 and Brussels Ia comes to the fore. (I continue to find my colleague Marie-Christine Janssens’ 2010 paper most informative on the issues; see also the link to Tobias Lutzi’s analysis of AMS Neve in my report of same). The relevant provisions of the Regulation (previously included in Regulation 207/2009, applied ia in CJEU AMS Neve), read

Article 125. International jurisdiction
1. Subject to the provisions of this Regulation as well as to any provisions of Regulation (EU) No 1215/2012 applicable by virtue of Article 122, proceedings in respect of the actions and claims referred to in Article 124 shall be brought in the courts of the Member State in which the defendant is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment.
2. If the defendant is neither domiciled nor has an establishment in any of the Member States, such proceedings shall be brought in the courts of the Member State in which the plaintiff is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment.

3. If neither the defendant nor the plaintiff is so domiciled or has such an establishment, such proceedings shall be brought in the courts of the Member State where the Office has its seat.

4. Notwithstanding the provisions of paragraphs 1, 2 and 3:

(a) Article 25 of Regulation (EU) No 1215/2012 shall apply if the parties agree that a different EU trade mark court shall have jurisdiction;

(b) Article 26 of Regulation (EU) No 1215/2012 shall apply if the defendant enters an appearance before a different EU trade mark court.

5. Proceedings in respect of the actions and claims referred to in Article 124, with the exception of actions for a declaration of non-infringement of an EU trade mark, may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened, or in which an act referred to in Article 11(2) has been committed.

 

Article 126. Extent of jurisdiction
1. An EU trade mark court whose jurisdiction is based on Article 125(1) to (4) shall have jurisdiction in respect of:

(a) acts of infringement committed or threatened within the territory of any of the Member States;

(b) acts referred to in Article 11(2) committed within the territory of any of the Member States.

2. An EU trade mark court whose jurisdiction is based on Article 125(5) shall have jurisdiction only in respect of acts committed or threatened within the territory of the Member State in which that court is situated.

 

The first two defendants are not based in the EU. Here, Article 125(2) grants jurisdiction to the UK courts.

Controversially, at 36 Nugee J applies a forum non conveniens test. It is disputed whether this is at all possible in the Trademark Regulation. He decides England clearly is the appropriate forum: ‘there is no other court that can try the UK trade mark claims, and for the reasons just given [French and  Spanish courts might have partial jurisdiction, GAVC] no other court that can grant pan-EU relief in respect of the EU trade mark claims.’

At 37 ff Nugee J then also still considers with reference ia to CJEU Pammer and the discussions on ‘accessibility’ (see also ia Football Dataco) whether there is a ‘serious issue to be tried’ and answers in the affirmative. Here I am assuming this must be seen as part of case-management rather than a jurisdictional test (viz Article 8(1) BIa’s anchor defendant mechanism, a ‘serious issue to be tried’ test is said to be part of the ‘related cases’ analysis; see related discussions ia in Privatbank), unless he reformulates the application of Article 126 as a ‘serious issue to be tried’ test – the structure of the judgment is leaving me confused.

Eventually however the previous Order made by the High Court, granting permission to serve out of jurisdiction, is set aside by Nugee J on grounds of lack of full and frank disclosure at the service hearing – an issue less exciting for this blog however dramatic nevertheless.

The French defendant (who issued a relevant press release (only 11 copies of which were distributed at the Farnborough airshow; this was found to be de minimis; not as such a mechanism available under the EUTMR I don’t think; but it might be under case management) and was also responsible for organising (ia by having the logo painted) the offending branding in France), at the jurisdictional level is dealt with in para 127 ff., first with respect to the trademark claim.

‘By art. 125(1) the default position is that the proceedings shall be brought in the courts of the Member State where the defendant is domiciled: in ATR’s case this is France. Neither art. 125(2) nor art. 125(3) applies to ATR because each only applies if the defendant is neither domiciled nor has an establishment in a Member State. Art. 125(4) does not apply as it is not suggested that ATR has either (a) agreed that the English court should have jurisdiction, or (b) entered an appearance before the English court. That leaves art. 125(5) under which proceedings may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened. In the present case that would also be France (and possibly Spain). It follows that none of the provisions of art. 125 confer jurisdiction on the English court to hear actions based on acts of infringement said to have been carried out by ATR in France and Spain.’

Counsel for EasyGroup accepted ia per AMS Neve that the Trademark Regulation is lex specialis vis-à-vis Brussels Ia but that nevertheless the general spirit of BIa should blow over Regulation 2017/1001. They refer at 130 to the ‘general desirability of avoiding duplicative proceedings and the risk of inconsistent judgments (as exemplified by arts 29 and 30 of Brussels I Recast),’ and argue that ‘it followed that once the English court had jurisdiction over the Defendants for the acts taking place in France (as it undoubtedly did under art. 125(2)), then it must also have jurisdiction over anyone else alleged to be jointly liable for the same acts of infringement.’

This therefore is a makeshift joinder mechanism which Nugee J was not impressed with. He pointed to the possibility under A125(5) to sue the other defendants and the French defendants in one jurisdiction, namely France. An A7(2) BIa action is not possible: A122(2)(a) EUTMR expressly provides that in proceedings based on A124, A7(2) BIa does not apply.

Finally, a claim in conspiracy against the French defendant is not covered by the EUTMR and instead by A7(2) BIa, discussed at 142 ff with reference to (Lugano) authority [2018] UKSC 19, which I discussed here. Locus delicti commissi, Nugee J finds, is not in England: no conspiratorial agreement between ATR and the Defendants in relation to the branding of the aircraft took place in England. At 145: ‘the Heads of Agreement, and Sale and Purchase Agreement, were each signed in France and Colombia, and there is nothing that can be pointed to as constituting the making of any agreement in England.’

As for locus damni, at 148 Nugee J holds this not to have been or potentially be in England:

‘The foundation of easyGroup’s claims in relation to the branding of the aircraft is that once painted they were flown on test flights, and en route to Colombia, in full view of the public. But the public which might have viewed the planes were the public in France and Spain, not the public in the UK. That might amount to a dilution in the brand in the eyes of the French and Spanish public, but it is difficult to see how it could affect the brand in the eyes of the UK public, or otherwise cause easyGroup to sustain loss in the UK. Mr Bloch said that if such a plane crashed, the news would not stop at the Channel and it might adversely affect easyGroup’s reputation in the UK, but no such damage has in fact occurred, and it seems to me far too speculative to say that it may occur. As already referred to, Mr Bloch also relied on easyGroup having suffered damage on the user principle (paragraph 82 above), but it seems to me that damages awarded on this basis would be damages for the loss of an opportunity to exploit easyGroup’s marks by licensing them to be used in France and Spain, and that for the purposes of the first limb of art. 7(2) such damage would therefore be suffered in France and Spain as that is where the relevant exploitation of the asset would otherwise take place.’

This last element (place where the relevant exploitation of the asset would otherwise take place) is interesting to me in Universal Music (purely economic loss) terms and not without discussion, I imagine.

Conclusions, at 152:

(1) There is a serious issue to be tried in relation to each of the claims now sought to be brought by easyGroup against the non-EU defendants.

(2) There was however a failure to make full, frank and fair disclosure at the service out of jurisdiction hearing, and in the circumstances that Order should be set aside.

(3) The question of amending to bring claims against the French defendant. But if it had, Nugee J would have held that there was no jurisdiction for the English court to hear the claims based on the acts in France (or Spain), whether based on trade mark infringement or conspiracy. There is jurisdiction to hear the claims based on the issue of the Press Release in the UK, but Nugee J would have refused permission to amend to bring such claims on the basis that they were de minimis.

A most interesting and thought provoking judgment.

Geert.

 

 

 

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CJEU confirms ‘targeting’ as a jurisdictional trigger for EU trademark infringement in AMS Neve.

Update 11 September 2019 Tobias Lutzi has excellent additional analysis hereUpdate 19 September 2019 Esther Noske has interesting German case-law background here and CDC are I bit more excited about the pioneering aspect of the case than I am, here – that is probably because I am not a pur sang intellectual property lawyer.

The CJEU today has held in C‑172/18 AMS Neve, confirming Szpunar AG’s Opinion which I briefly reviewed earlier. Eleonora Rosati has excellent analysis here and I am happy to refer entirely. As I note in my handbook, ‘targeting’, ‘directed at’ and ‘business models’ are a variety of jurisdictional triggers across EU law. The lack of uniform terminology does not assist the unsuspected reader or practitioner.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Heading 2.2.8.2.5; Heading 2.2.11.2.4 (quoted by the AG in his Opinion).

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Szpunar AG on jurisdiction for trade mark infringement in AMS Neve.

Advocate General Szpunar opined end of March in C‑172/18 AMS Neve. The case concerns in essence, in the AG’s words, whether and, if so, under what circumstances, pursuant to Article 97(5) of Regulation 207/2009 on a Community Trade Mark, the person responsible for an alleged infringement, consisting in the advertising and offer for sale of goods bearing a sign which is identical to an EU trade mark on a website, may be sued in the courts of the Member State on whose territory the traders and consumers targeted by that website are situated.

It is clear from the rules on jurisdiction in Regulation 207/2009 on Community trade marks that the EU legislature decided to derogate in part from the rules on jurisdiction in Brussels Ia (these are fully applicable in the case of actions relating to national trade marks).

CJEU authority is varied (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, is a clear precedent; as is Wintersteiger; Hejduk; Pinckney; Football Dataco) but difficult to apply for all of them are so easily distinguishable: various intellectual property rights are at issue; some of them EU-wide granted, others only local; precedent on online activity generally such as Pammer /Alpenhof, ‘G’ etc. do not have the IPR context,….

The Advocate General does a highly commendable job (in my classes I tend to make things easy for myself on this section by mumbling something like ‘it’s complicated’; ‘you need to know your intellectual property rights’; and ‘there are so many rules in the secondary law on IPR’) in distinguishing and untangling authority, and he focuses his analysis on the issue of ‘targeting’. Those with an interest in IPR litigation had best read the Opinion in full.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Heading 2.2.8.2.5; Heading 2.2.11.2.4 (quoted by the AG in current Opinion).

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Rulings on costs and their impact on the effet utile of EU civil procedure. The High Court in PABLO STAR re copyright infringement.

In [2017] EWHC 2541 (IPEC) Pablo Star Media v Richard Bowen the issue was one over copyright infringement relating to a photograph of Dylan Thomas. Of interest to this blog is not the copyright issue or the height of damages relating to same – I am not a specialist in that area. (As far as the jurisdictional issues are concerned, there is a slightly muddled reference to the Brussels I Recast and various other Regulations including Regulation 542/2014 which I discussed here).

What did trigger my interest, though, is the ruling on costs.

At 33-34 Hacon J quotes the District Judge’s reasoning for obliging claimant (Pablo Star) to pay part of the defendant’s cost, despite having won the case. In that cost award, the District Judge scolds claimant for having initiated proceedings in Ireland as well as the UK, and for considering (or threatening, as the case may be) litigation in the US. The High Court at 38 and 41 leaves aside the proceedings in Ireland as a factor to consider, and now limits the reasoning for the award on cost to the potential proceedings in the US.

Now, costs determination largely is within the realm of national rules of civil procedure. Sometimes, EU and /or international law has a direct impact on cost determination, such as for instance in the case of Aarhus and environmental litigation; or, importantly for the case at issue, Directive 2004/48 on intellectual property rights enforcement (the enforcement Directive). This Directive provides in Article 14 on legal costs

‘Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.’

That Directive was applied in CJEU C-57/15 UVP v Telenet, expressly condemning Belgium’s restrictive regime on cost recovery in intellectual property cases. The High Court’s finding on cost may to my mind be at odds with that ruling.

More generally, the District Judge’s reference to claimant’s Irish proceedings contributing to the judge’s finding on cost, without a doubt is an infringement of the effet utile of the EU’s jurisdictional regimes. Claimant has a certain right to sue in Ireland and that possibility must in no way be disciplined.  Hacon J at the High Court, purposely or not, may have insulated himself from criticism at this point, by leaving the Irish proceedings outside the consideration and only referring to the threat of US proceedings as relevant for partially shifting costs to the plaintiff.

Absolute numbers in the case are not high. Yet the principle to my mind deserves right to appeal at the CA and, from there on, potentially to the CJEU.

Geert.

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A v M (Austria): Copyright infringement, locus delicti commissi in case of breach of obligation to pay.

For your second conflicts reading of the day I thought I should serve something more substantial. In A (an Austrian company) v M (a company located in Luxembourg) the Austrian Supreme Court (Oberster Gerichtshof) had to decide on the determination of the locus delicti commissi in the event of infringement of copyright. M had effectively siphoned off to its website, some of A’s satellite broadcasts. Plenty of CJEU precedent is referred to (Hejduk; Austro Mechana; to name a few).

Thank you very much indeed Klaus Oblin for providing me with copy of the judgment – back in early June. Effectively, at issue was  the infringement of a duty to pay.  Klaus has excellent overview of the issues, of which the following are definitely worth highlighting. The Supreme Court justifiably of course emphasises autonomous interpretation of Article 7(2) Brussels I Recast. Yet autonomous interpretation does not provide all the answers. There are plenty of instances where locus delicti commissi is not easily identified, such as here.

The Oberster Gerichtshof seeks support in the Satellite Directive 93/83, but notes that the Directive includes no procedural clauses, let alone any regarding international jurisdiction (at 2.4.2. It refers to the German Bundesgerichtshof’s decision in Oscar). It then completes the analysis by reference to national law:

Section 42b(1) of the Act on Copyrights and Related Rights to classify breach of copyright as a tort (CJEU Kalfelis would have been a more correct reference) ; and

Section 907a(1) of the Civil Code) to identify the locus of the delicti commissi: because monetary debts in acordance with that section must be discharged at the seat of the creditor, the domestic courts at the Austrian seat of the collecting society have jurisdiction. In coming to its conclusion, the court (at 3.2) refers pro inspiratio to Austro Mechana, not just the CJEU’s judgment but also the ensuing national judgment.

Now, lest I am mistaken, in Austro Mechana the CJEU did not identify the locus delicti commissi: it simply qualified the harm arising from non-payment by Amazon of the remuneration provided for in Austrian law, as one in tort: at 52 of its judgment: it follows that, if the harmful event at issue in the main proceedings occurred or may occur in Austria, which is for the national court to ascertain, the courts of that Member state have jurisdiction to entertain Austro-Mechana’s claim. (emphasis added)

Given its heavy reliance on national law, I would suggest the judgment skates on thin ice. Reference to the CJEU seemingly was not contemplated but surely would have been warranted. Kainz is a case in point where locus delicti commissi was helpfully clarified by Luxembourg, Melzer one for locus damni.

Geert.

(Handbook of) European Private international Law, 2nd ed. 2016, Chapter 2, heading 2.2.11.2.

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Hejduk: Copyright infringement and jurisdiction. The ECJ entertains much less than its AG.

I have reviewed the AG’s opinion in Hejduk here. The AG’s Opinion was exciting for it cited, even if only in a specific (IP; more specifically copyright) context, the difficulty in identifying locus damni. This, I suggested (realistically optimistic) flagged an obvious concern with the ECJ’s ruling in Bier. However the ECJ in its judgment, issued yesterday,  was not having any of this. It applied relevant precedent (all recalled in my earlier posting), did not at all entertain the AG’s concerns with the locus damni assessment, and held that in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated.

Plaintiff’s difficulties were of no concern to the ECJ. No surprise perhaps given the Brussels I Regulation’s near-exclusive concern for the position of the defendant.

Geert.

 

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Jurisdiction, intellectual property and the internet. Might CRUZ VILLALÓN AG in Pez Hejduk introduce the end of Bier?

Let me answer the question immediately: that is unlikely. It is however an interesting prospect and, who knows, might be a start. CRUZ VILLALÓN AG’s Opinion in Pez Hejduk, case C-441/13 (at the time of writing available in plenty of languages but not in English), provides an excellent tour d’horizon of the application of the special jurisdictional rule of Article 5(3) [following the recast, Article 7(3)] Brussels I, to cases involving infringements of an intellectual property right.

For trademarks, the most recent case is Coty, Case C-360/12, reviewed by Alberto Bellan here. Pez Hejuk concerns copyright: an intellectual property right for which no formality (such as registration) is required for it validly to exist. Pinckney, Wintersteiger, Football Dataco: the application of Article 5(3) [and the delineation with leges specialis in the IP field] is not exactly crystal clear and the need for distinguishing very high. This resulted in this particular case in the Handelsgericht Wien requesting ECJ back-up on the application in the case of Ms Hejduk, a professional photographer, suing EnergieAgentur for unauthorised use on its .de website of photographs which had only been authorised for one-off use during a conference.

In view of Pinckney et al, the AG splendidly and concisely distinguishes the various strands of case-law and the raison d’etre for their consecutive jurisdictional criteria – please refer to the opinion itself for a summary by me would not do it justice. Encouraged in particular by Portugal and the EC, the AG then further distinguishes current case. As noted by Eleonora Rosati here, the AG emphasises that not only would it be difficult for the defendant having potentially to face actions in multiple Member States, but also the plaintiff would have limited benefits from seeking limited damages in more jurisdictions, and would find it difficult to prove such damage given the accessibility of the site.

Which is why the AG suggests that further distinguishing is needed for what he calls cases involving ‘delocalised damages’ involving IP, leading to the suggestion that in such case, only the judges of the Member State in which the causal event occurred should have jurisdiction on the basis of Article 5(3) (general jurisdiction for the domicile of the defendant not withstanding, obviously: per Article 2 JR). In other words: only the locus delicti commissi would be upheld. Not the locus damni.

Now, no reference is made to the case in the AG’s Opinion, however, surely this amounts to no less than a reversal of Bier /Mines de Potasse d’Alsace, case C-21/76. the ECJ’s extension in Bier, away from the literal meaning of Article 5(3) has, as I often have emphasised, triggered a long series of cases in which the ECJ has had to massage the ripple effect of the locus damni rule. If it were (which of course is not at all certain) to take up the AG’s suggestion here, and drop locus damni, might it not eventually have to concede that in many if not all cases, it is difficult for the defendant having potentially to face actions in multiple Member States, and for the plaintiff to have to prove and seek limited damages in more jurisdictions.

On that basis (that however narrowly distinguished, siding with the AG would mean acknowledging the weakness of the locus damni rule), I find it very likely that the ECJ will not run with it. Whence it might either not distinguish Hejduk from Pinckney, or assimilate it with eDate Advertising, or further distinguish and add an alternative, Hejduk rule, in the event of ‘delocalised damages’.

One to look out for!

Geert.

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Digital import suffices for jurisdiction of the US International Trade Commission in patent infringement

Update November 2015 the CA reversed the finding of jurisdiction on 10 November 2015, confining it to material items. However its judgment was not unanimous (one dissent) nor unequivocal in argument. The case is likely therefore to be continued.

Update 26 August 2015 the CA reportedly was skeptical of the jurisdictional line taken by the ITC, citing in particular enforcement challenges as well as seperation of powers: extension of jurisdiction such as in this case may have to be determined by Congress, not by a regulator.

Update 4 August 2015: the US Court of Appeals will hear arguments on the case mid August.

The US International Trade Commission has held (in re Align Technology Inc, 337-TA-833) that electronic /digital import of plans and manuals with a view to producing moulds for dental aligners (braces) suffices to give the ITC jurisdiction. As I understand the case, the companies violating Align Technology’s patents were based in Pakistan, without domestic residence of any kind in the United States. The data were then used by US-based dental practices to produce the braces.

The foreign residence of the patent infringers fed into arguments made by defendants that a cease and desist order by the ITC would be very difficult to enforce, an argument against upholding jurisdiction in the first place. The ITC was not swayed.

I understand Google, among others, argued that digital data do not qualify as ‘articles’ under relevant US law. Reminiscent to some degree of the dismissal of Google’s arguments by JÄÄSKINEN AG in  Google Spain, the ITC disagreed: digital data are very real articles as, I would argue, the massive market for digital download already amply illustrates.

Geert.

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Rolex v Blomqvist. ECJ confirms irrelevance of ‘focus and target’ or ‘direction’ in intellectual property cases.

After its withholding of mere accessibility of a site as a jurisdictional trigger for copyright infringement in Pinckney, the ECJ has now accepted that the mere acquisition of a good by a person domiciled in an EU Member State, suffices to trigger the application of the EU Customs Regulation’s provisions on counterfeit and pirated goods. It is not necessary, in addition, for the goods at issue to have been the subject, prior to the sale, of an offer for sale or advertising targeting consumers of that State.

In Case C-98/13 Martin Blomqvist v Rolex Mr Blomqvist, a resident of Denmark, ordered a watch described as a Rolex from a Chinese on-line shop. The order was placed and paid for through the English website of the seller. The seller sent the watch from Hong Kong by post. The parcel was inspected by the customs authorities on arrival in Denmark. They suspended the customs clearance of the watch, suspecting that it was a counterfeit version of the original Rolex watch and that there had been a breach of copyright over the model concerned. In accordance with the procedure laid down by the customs regulation, Rolex then requested the continued suspension of customs clearance, having established that the watch was in fact counterfeit, and asked Mr Blomqvist to consent to the destruction of the watch by the customs authorities. Mr Blomqvist refused to consent to the destruction of the watch, contending that he had purchased it legally. Is there in the present case any distribution to the public, within the meaning of the copyright directive, and any use in the course of trade, within the meaning of the trade mark directive and the trade mark regulation?

The ECJ re-iterated earlier case-law (in particular L’Oreal /E-bay) that the mere fact that a website is accessible from the territory covered by the trade mark is not a sufficient basis for concluding that the offers for sale displayed there are targeted at consumers in the EU. However proof that the goods are intended to be put on sale in the European Union, is being provided, inter alia, where it turns out that the goods have been sold to a customer in the European Union, such as clearly in the case at issue.

That sales to the EU have taken place is enough. Proof that EU consumers were actually targeted is not required – at least not with a view to triggering intellectual property protection (cf consumer protection under i.a. the jurisdiction Regulation).

In the view of the EU of course this is not an ‘extraterritorial’ application of EU law: the territorial link is firmly established through the customer’s domicile.

Geert.

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Jurisdiction in copyright infringement with the involvement of the internet – The ECJ in Pinckney is satisfied with accessibility

[postscript 4 February 2014: the Cour de Cassation held on 22 January 2014, following the ECJ’s lead.]

I reported earlier on the AG’s Opinion in Pinckney. The ECJ held this morning.  The questions were held admissible (see my fear that the Court might side with the AG’s suggestion of the opposite).

Pro memoria: the case concerns an alleged infringement of a copyright which is protected by the Member State of the court seised (France), that court questioning its jurisdiction to hear an action to establish liability brought by the author (who lives in France) of a work against a company established in another Member State (Austria), which has in the latter State (Austria) reproduced that work on a material support which is subsequently marketed by companies (Crusoe and Elegy) established in a third Member State (the UK) through an internet site which is also accessible in the Member State of the court seised (France).

The Court of Appeal at Toulouse) held that the Tribunal de grande instance de Toulouse lacked jurisdiction on the ground that the defendant is domiciled in Austria and the place where the damage occurred cannot be situated in France, and that there was no need to examine the liability of Mediatech and Crusoe or Elegy in the absence of any allegation of collusion between them and Mediatech. The Cour de Cassation referred to the ECJ.

The ECJ concisely sets out its case-law in intellectual property rights vs personality rights infringements – I will not repeat the exercise here.  It emphasises the (in my view conceptually wrong) link between applicable law and jurisdiction in the case of special jurisdictional rules. Unlike the AG, however, the court does not withhold ‘focus and target’ of the website as a criterion for jurisdiction. ‘(T)he possibility of obtaining a reproduction of the work to which the rights relied on by the defendant pertain from an internet site accessible within the jurisdiction of the court seised‘ (emphasis added) suffices.  However if locus damni is the only jurisdictional ground for that Member State, that court, per the Shevill rule, only has jurisdiction to adjudicate on the damage caused in that Member State.

No doubt the IP community will chew a bit more on the judgment. The patchwork of litigation possibilities in IP infringement cases remains a challenge.

Geert.

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