EUPillar BVBA Serverscheck v BV Google Netherlands - Voorz. Rb. Leuven , 1 March 2007

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 defendant is the Dutch subsidiary 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 online search service is complemented by the “Google Suggest” and “Google Toolbar” functions. When typing “serverscheck” into the Google Toolbar, the Google Suggest service immediately suggests alternatives such as “serverscheck crack”, “serverscheck keygen”, etc., thereby leading the internet user to illegal versions of the Serverscheck software. The applicant seeks an injunction to put a stop to this practice. The applicant initiated summary proceedings. The first summary proceedings (initiated on 14 February 2006) were dismissed by the president of the court for lack of urgency (by order of 11 May 2006). On 12 June 2006 the applicant submits a second application for summary proceedings on the substance of the case. The defendant contests 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 a subsidiary of Google Inc., the defendant provide their services to the Benelux internet user, including the Belgian market. Therefore, the use that potential internet users make of the Google AdWord function 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.