Case number and/or case name
Jean Malak v. S.A. Endoscopie Richard Wolf Belgium, Nouvag Dental und Medizintechnik GmbH and Nouvag AG - Bruxelles, 15 October 2009
Summary
The appellant, Dr. Malak, is a plastic surgeon and the holder of a Belgian and a European patent for a liposuction device. At a trade fair for medical devices in Düsseldorf in 2003, Mr. Malak finds that Nouvag (second and third respondents) sells equipment which he considers an infringement of his patents. On 9 September 2004, Mr. Malak sues Nouvag for patent infringement; as well as Wolf, the first respondent and distributor of Nouvag’s equipment in Belgium. Nouvag brings a counterclaim for nullity of the patent.
As to the substance of the case, the Court grants Mr. Malak’s claims. Wolf, the first respondent, turns against its contractual parties Nouvag AG and Nouvag GmbH. Wolf had bought a few devices from Nouvag and had also incurred additional costs, mainly for participating in several trade fairs and for visits to hospitals in order to present the product to the Belgian market. Nouvag GmbH contests the international jurisdiction of the Belgian courts. The company invokes its general terms and conditions which contain a choice of court clause in favour of the courts of Germany. However, these terms and conditions were printed on the back of its invoices. An invoice is sent only after a contract is made and cannot unilaterally modify the provisions of the sales agreement. Nouvag GmbH cannot rely on its choice of court clause. The Belgian courts have jurisdiction on the basis of Art. 5(1) Brussels I Regulation, since the goods were to be delivered in Belgium.
Short critique
This is a correct application of the principles of the Brussels I Regulation.