EUPillar BGH, 28.6.2012

Summary

The plaintiff produces and sells perfumes and cosmetics. He holds the rights on a registered community trademark and sells the perfume “Davidoff Cool Water Woman” whose flacon is modelled by the community trademark. The defendant is a company based in Belgium. It sold the perfume “Blue Safe for Women” to Stefan P. who runs his business in Germany. The plaintiff considers the distribution by the defendant as an infringement of the trademark and claims for damages and information. The Regional Court and the Higher Regional Court denied the international jurisdiction of German courts. The Federal Court of Justice came to the conclusion that the proceedings have to be stayed in order to obtain a preliminary ruling by the CJEU concerning the interpretation of Art. 5 no. 3 Brussels I. The international jurisdiction had to be based on Art. 93 (5) Regulation (EC) No 40/1994 (Trademark Regulation). The court supposed that the place of the infringement in Art. 93 Regulation (EC) No 40/1994 meant the place where the tort was committed as well as the place where the harm arose. According to the court those two possibilities had to be defined in the same way as in terms of Art. 5 No 3 Brussels I. That is why the preliminary question (also) concerned Art. 5 no. 3 Brussels I. In the present case both the place where the tort was committed and the place where the harm arose were located in Germany. According to the court it wasn’t clear if the article can be interpreted in a way that the harmful event occurred in member state A (here Germany) when the harmful action (i.e. the subject matter of the proceedings) was committed in another member state B (here Belgium) given the fact that this action consists in a participation in the tort committed in member state A (here Germany). The present case concerns the interpretation of an act of a European institution in terms of Art. 267 TFEU. The Brussels I Regulation is being considered by the court in order to define the Trademark Regulation, which includes a quite similar term as the Brussels I Regulation concerning the international jurisdiction. The interpretation being preferred by the court, extending the jurisdiction to claims against the assessor of the tort would mean an extension of the Regulation’s scope of application. Therefore, it is in view of Art. 267 TFEU reasonably required submitting the issue to the CJEU in order to obtain a preliminary ruling.