EUPillar OLG München, 2.2.2012

Summary

The defendant used a flash presentation on his website. The plaintiff holds the proprietary rights of use and exploitation on this graphical presentation. The plaintiff brought an action for damages and an injunction before the Regional Court. The defendant’s website was in German, worldwide accessible and their address was ‘www…at’. On the website people were encouraged to arrange a meeting when interested in the company’s products. The Regional Court dismissed the action in view of the lack of international jurisdiction. The plaintiff appealed this decision. The Higher Regional Court confirmed the judgment: The ‘place where the harmful event occurred or may occur’ in Art. 5 Brussels I meant – in accordance with the jurisdiction of the CJEU – the place, where the tort was committed as well as the place where the damage occurred. Germany was neither the place where the tort was committed nor the place where the damage arose. For the latter the internet presentation would have to be focused on Germany. The Court stated that it was not sufficient that the website was reachable from Germany. The fact that the site was in German didn’t indicate a direction towards Germany because German was also spoken in Austria. The encouragement to arrange a meeting was also linked with an address in Graz (Austria) and an Austrian telephone number. The Court concluded that this fact didn’t lead to the assumption of a focus on German consumers. The purpose of Art 5 No. 3 Brussels I is to establish a place of jurisdiction where taking of evidence and objective clarification can be carried out in the most appropriate way. The CJEU stated in eDate Advertising (C-509/09) that in case of an infringement of personality rights via internet the person who considers his rights having been infringed can bring an action in respect of all the damage caused either before the court where the publisher is established or before the courts where the centre of the person’s interests is based. The person according to this jurisdiction can also bring an action before the courts where the content has been accessible but only in respect of the damage caused in this country. In Wintersteiger (C-523/10) the object of the infringement was a trademark. The court decided that trademarks are basically protected in the country of protection. In the present case the website’s content was reachable from Germany as it is usual for any content on websites. It is not clear if the guidelines from eDate can be transferred to the present case so that the place where the damage arose was Germany and the plaintiff could obtain the damages caused there. The decision of the Higher Regional Court Munich can’t be clearly derived from Art. 5 No 3 Brussels I because in the past cases concerning violations of rights via internet the CJEU has made differentiations. Therefore it would have been useful to make a reference for a preliminary ruling before the CJEU.