Hof Amsterdam, uitspraak van 16/11/2006 974/06 Red Bull GmbH / Procter & Gamble Nederland BV
Decision by national courts in the field of European Union law — ECLI:NL:GHAMS:2006:AZ2465
Date: 2006-11-16
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82006NL116((51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The claimant distributed drinks possessing stimulant effects under the trademark “Red Bull”. The defendant distributed pastilles in Germany, Austria and the Netherlands under the name “Red Energy”, which likewise possessed stimulant effects. The claimant applied to the Handelsgericht of Vienna (AT) in proceedings for provisional relief for a prohibitory injunction. The application was only granted in part. In an action in proceedings for provisional relief before the Rechtbank of Amsterdam (NL), it sought, inter alia, a further prohibitory injunction against the defendant. The defendant invoked Article 27 Brussels I Regulation. The action was an abuse of rights to the extent to which an injunction was sought that had already been refused by the Austrian court. Lastly, the defendant sought a stay of proceedings pursuant to Article 28. The Rechtbank held that it had jurisdiction. The defendant lodged an appeal to the Gerechtshof of Amsterdam (NL).
The Hof of Amsterdam (NL) affirms the first instance judgment. The claimant bases its application on trademark rights which were registered in the Benelux Trademark Office and are thus subject to the Benelux Trademarks Convention. According to Article 71 Brussels I Regulation, that Convention takes priority over the jurisdictional provisions of the Brussels I Regulation. The defendant was not a party to the proceedings in Austria. The companies sued there merely belong to the same group as the defendant. The individual, sued companies are not one and the same party simply because they are in the same group. To that end, further circumstances must be present. As the defendant is not bound by the Austrian judgment, the requirements of Article 27 and 28 Brussels I Regulation are not fulfilled, and the action is also not an abuse of rights. Irreconcilable judgments within the meaning of Article 28 Brussels I Regulation are not to be feared in the case of provisional relief. The Hof of Amsterdam dismisses the appeal.