Case number and/or case name
OLG Düsseldorf, 28.1.2010 – I-2 U 131/08
Details of the court
Germany, Second Instance
Articles referred to by the court
Date of the judgement
27 January 2010
CJEU's case law cited by the court
Summary
The plaintiff holds the patent for a procedure for compression of moved image signals through interlaced scanning.
The Greek defendant produces DVDs that use image signals generated through the patented procedure. The plaintiff ordered 500 DVDs from the defendant to Germany.
In the previous instance the defendant was sentenced to refrain from placing optical data mediums on the market in Germany. The defendant now appeals against this judgment and argues that German courts don’t have international jurisdiction.
The court states that German courts do have international jurisdiction pursuant to Art. 5 no. 3 Brussels I. The delivery of 500 patent infringing DVDs to Germany fell within the scope of application of Art. 5 no.3 Brussels I. The place where the harm occurred and the place where it arose lied at the place of destination in Germany.
The defendant argued that the plaintiff abusingly ordered the DVDs to Germany and solely did this to establish German jurisdiction. Considering the fact that the defendant was willing to deliver to Germany this argument according to the court could not be valid.
Also, there was no closer relation to the courts of a different state. The fact that the plaintiff changed the point of delivery from its business address to an address in Cologne was irrelevant for the determination of international jurisdiction. In both cases German courts had international jurisdiction.
With regard to the determination of the place where the harm occurred it is worth saying that some authors suggest that the connecting point could be brought forward to the act of producing the DVDs as they are specifically designed for the placing on the market in Germany.The prevailing opinion considers this a mere preparatory act.
The topic of fraudulent intent is a problem addressed by scientific literature. Some authors even demand a general control of abusing the rules of jurisdiction.
However, the court's decision in the present case is correct: a general control of abusive behaviour can not be deduced from the rules on jurisdiction in Brussels I.