EUPillar Wibra België nv, Wibra Holding bv, Wibra Supermarkt bv and Wibra Supermarkt-Noord bv v. VF International SAGL - C.12.0463.N

Summary

In the proceedings in first instance, the Swiss trade mark holder brought an action against the Belgian and Dutch defendants in order to stop them from selling bags in violation of its trade mark. The first judge issued an injunction without territorial restrictions. On appeal, the defendants (for the first time) contested the jurisdiction of the Belgian courts. The Court of Cassation decides the following: Pursuant to Art. 90(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, the 1968 Brussels Convention – now replaced by the Brussels I Regulation – shall apply to proceedings relating to Community trade marks. Pursuant to Art. 6(1) Brussels I in conjunction with Art. 90(2)(c) Regulation 40/94, a person domiciled in a Member State may also be sued where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Pursuant to Art. 93(4)(b) of Regulation 40/94, Art. 24 Brussels I shall apply if the defendant enters an appearance before a different Community trade mark court. If the challenge to jurisdiction is not preliminary to any defence as to the substance it may not in any event occur after the making of the submissions which under national procedural law are considered to be the first defence addressed to the court seised (cf. ECJ 24 June 1981, Elefanten Schuh v. Jacqmain, 150/80, consideration 16). The Court of Cassation then cites ECJ, C-111/09, considerations 21-25. Art. 22 is not applicable to mere infringement proceedings. Pursuant to Art. 94(1) Regulation 40/94, a Community trade mark court whose jurisdiction is based on Article 93 (1) to (4) shall have jurisdiction in respect of acts of infringement committed or threatened within the territory of any of the Member States. It follows that the defendants who enter an appearance before the Community trade mark court, cannot contest the jurisdiction or its extent after the making of the submissions which under national procedural law are considered to be the first defence addressed to the court seised. Pursuant to Art. 854 Belgian Judicial Code, the lack of jurisdiction must be raised in limine litis. The appellants raised the question of the lack of jurisdiction of the court for the first time on appeal, while they had accepted its jurisdiction in the proceedings in first instance. Their argument is late. The Brussels Court of Appeal had jurisdiction and the cassation appeal is dismissed. The decision of the Court of Cassation is correct.