PIL instrument(s)

Case number and/or case name

A. and Les Opéras en plein air v. SPRL Trait d’esprit - RG 2012/AR/874 - 27 September 2012

Details of the court

Belgium, Second Instance

Articles referred to by the court

Date of the judgement

26 September 2012

Appeal history

CJEU's case law cited by the court

Summary

The defendant is a design firm which designed posters for several open-air operas organised by the appellants in 2006. The invoices relating to these services were never paid. In 2010, the appellants stage two new operas in Paris. The promotional posters for the event use the logo that had previously been designed by the defendant. The logo also appears on the appellants’ website, www.operaenpleinair.com, and on the promotional merchandise that is for sale. The defendant brought proceedings for copyright infringement against the appellants before the Brussels Commercial Court, seeking an injunction as well as payment of the invoices issued in 2006. The first judge recognises its international jurisdiction but sends the case to the Brussels Court of First Instance. The appellants lodged an appeal to contest the international jurisdiction of the Belgian courts. On the infringement proceedings The Court of Appeal considers that the logo is visible to Belgian internet users on the website www.operaenpleinair.com, as well as on the tickets which can be bought at the chain store FNAC in Belgium. Even if the operas are staged in France, it is possible for Belgian residents to buy tickets and acquire merchandising of the show. Therefore, the harmful event occurs in Belgium and the Belgian courts have jurisdiction on the ground of Art. 5(3) Brussels I Regulation. The Court of Appeal states that the Pammer/Hotel Alpenhof case of the ECJ (C-585/08) is not relevant since it interprets Art. 15 Brussels I Regulation and not Art. 5(3). On the unpaid invoices The invoices relate to services provided by the defendant. Pursuant to Art. 5(1)(b), the courts for the place where, under the contract, the services were provided or should have been provided, have jurisdiction. In the case of design services, the courts of the place where Trait d’Esprit has its seat are competent. The fact that one of the invoices is partly concerned with the delivery of brochures and other printed materials does not change this (the accessory follows the principal). The Belgian courts have jurisdiction. Short critique The Brussels Court of Appeal applies the eDate/Martinez case of the ECJ (C-161/10 and C-509/09). In Pinckney (C-170/12) had to apply those principles to copyright infringement. The judgment was handed down after the above decision of the Brussels Court ofAppeal. The ECJ departs from previous case law in Pammer/Hotel Alpenhof and adopts the mere accessibility of the website as a criterion – as the Brussels Court of Appeal has also done.