Oberster Gerichtshof; 2016-12-20; 4 Ob 45/16w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2016:0040OB00045.16W.1220.000
Date: 2016-12-20
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82016AT1220(51)_ENG_SUMJURE
JURE summary
JURE summary
A company based in the United States (hereinafter the "plaintiff") requested the transfer (or deletion or omission of the use) of two domains "stubhub.at" and "stubhub.ch" registered on a natural person in Germany (hereinafter the "defendant").
The international jurisdiction of the Court of First Instance (Handelsgericht Wien) is due to the fact that the domain stubhub.at is aimed at the Austrian market and the domain stubhub.ch violated Austrian law in addition to Swiss law. Both Article 5(3) of the Brussels I Regulation (¹) and Article 97(5) of the Regulation No 207/2009 (²) provide that complaints can be raised both at the place where harm occurred and at the place where harm arose.
The defendant raised the plea of international incompetence. Article 5(3) of the Brussels I Regulation is not applicable because the alleged obstruction is in the United States at the plaintiff’s registered office and not in Austria.
The Court of First Instance rejected the complaint due to a lack of international jurisdiction.
The Court of Appeal (Oberlandesgericht Wien) rejected the plea of international incompetence. It based its judgement on the case-law of the Court of Justice of the European Union (hereinafter the "CJEU"), according to which the two domains objectively were aligned to the Austrian market as well.
The defendant’s appeal was admissible and partially entitled.
The Oberster Gerichtshof (hereinafter "OGH") divided its legal opinion into two parts.
1. Jurisdiction according to the Regulation No 207/2009 (Restraint of Trade)
For the purposes of the decision (³) of the CJEU, an analogous interpretation of the term given in Article 97(5) of the Regulation No 207/2009 to the place where the damaging event occurred in Article 5(3) of the Brussels I Regulation is not possible. Article 97(5) of the Regulation No 207/2009 only establishes a jurisdiction at the place where the harm occurred, but not at the place where harm arose. Therefore there is no international jurisdiction of the Court of First Instance for the domain stubhub.ch. The Registrar of the domain stubhub.at is located in Austria, but this does not constitute a place where harm occurred according to Article 97(5) of the Regulation No 207/2009.
2. Jurisdiction according to Brussels I Regulation (Infringement of the plaintiff's Community Trademarks)
In this case, the plaintiff has a choice (4) to sue both at the place where harm occurred and at the place where harm arose. There is no doubt about the effect of both domains’ registration on the Austrian market.
Indeed, the plaintiff sought the transfer or the deletion of the two domains alternatively. Applying Article 5(3) of the Brussels I Regulation, the jurisdiction of the Austrian Court for claims for transfer (deletion) can be considered only in respect of stubhub.at. Claims concerning stubhub.ch can only be asserted at the defendant’s domicile in Germany or in Switzerland (5).
Other shall be established in relation to the right of injunctive relief. This can be restricted to the availability of a website in a particular state. Irrespective of the place of registration, an injunction may be sought in any court in whose jurisdiction the use is effected.
The OGH rejected the plea of international incompetence regarding the transfer of the domain stubhub.at. However, the OGH dismissed the complaint concerning the transfer, deletion alternatively, of the domain stubhub.ch. In addition, the OGH rejected the international incompetence in respect of refraining from using the domain in Austria.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, valid until 09.01.2015.
(2) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (Text with EEA relevance).
(3) See decision No C-360/12 – Coty Germany GmbH/First Note Perfumes NV.
(4) See decision Rs 21/76, Bier/Mines des Potasse.
(5) Article 5(3) of 88/592/EEC: Convention on jurisdiction and the enforcement of judgments in civil and commercial matters - Done at Lugano on 16 September 1988