EUPillar BVBA Serverscheck v BV Google Netherlands and NV Google Belgium - AR 2009/1321

Summary

The applicant has registered two domain names, www.serverscheck.com and www.serverscheck.be. The applicant provides ICT, engineering, communication, software and internet services to professional clients. The software can be downloaded through its website and used for free during a trial period. At the end of the trial period, the software is automatically blocked until the client pays a licence fee. The defendants are the Dutch and Belgian subsidiaries of Google Inc., the American company which offers its online search engine to internet users. This search engine is accessible through www.google.com or through a national address such as www.google.be. The search engine is funded by several advertising services, such as Google AdWords, allowing targeted advertisements to be shown when users type in certain search terms. These search terms are not chosen by Google, but selected by the advertisers who use Google’s services. After a previous summons of 15 February 2006, Google made sure that competitors of the applicant, BVBA Serverscheck, could no longer use the term “Serverscheck” as a search term for sponsored links and advertisements. In 2009, the applicant notices that its trade name is yet again used by its competitors in this way and sues the defendants for an injunction to cease and desist this unfair trade practice. The defendants contest the international jurisdiction of the court. The applicant erroneously invokes Art. 31 Brussels I Regulation. The present proceedings are summary proceedings only where the form and formalities are concerned. The president of the Court is not asked to order provisional measures, but indeed to rule on the substance of the case. (This is a specific procedure “zoals in kort geding”/”comme en référé” which exists under Belgian law. There is no need for urgency in this kind of proceedings. The president of the Court is said to sit “as in” summary proceedings.) The president of the Court applies Art. 5(3) Brussels I Regulation. The concept of “matters relating to tort” covers all actions which seek to establish the liability of a defendant and which do not concern “matters relating to a contract” within the meaning of Art. 5(1)(a) of the Regulation. As subsidiaries of Google Inc., the defendants provide its services to the Benelux internet user, including the Belgian market. Therefore, the use that potential internet users make of the Google Toolbar and Google Suggest functions could cause harm in Belgium. The alleged infringement of fair trade practices originates abroad, but ends in Belgium, where the harmful event – the loss of clients – occurs or may occur. The protection of the rights allegedly infringed (fair trade practices, trade name and company name) is territorial. The close connecting link between the claim brought by the applicant and the Belgian courts, as required by Art. 5(3), is established.