Oberster Gerichtshof, Urteil vom 08/07/2003 4 Ob 122/03z
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2003:RS0117837
Date: 2003-07-08
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82003AT0708(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is an Austrian company, which is the proprietor of the protected word-figurative trade mark “Northland” and which sells items of clothing under this trademark. It demands from the Italian respondent company, which also produces clothing under the “Northland” label and sells it in Italy, to refrain from using the label in Austria. The defendant had not sold its products there itself, but rather Austrian retailers had bought these products in Italy at the defendant's exclusive sales outlet and thereupon had marketed them in Austria. Furthermore, the defendant was requested to render an account of the sales of its goods in Austria, to pay a licence fee to the plaintiff as well as to remove the label “Northland” from the goods situated in Austria. According to the defendant, the Austrian courts lack jurisdiction as the defendant’s actions could only have caused damage to the plaintiff in Italy.
The OGH (AT) initially states that trademark infringements constitute a tort, delict, or quasi-delict within the meaning of  Article 5(3) Brussels Convention and that it is not distinguished which claims arising from the infringement, are pleaded. These are determined, solely, according to the applicable national law. Therefore, the claim for accounting and for payment can also be pursued at the place where the harmful event occurred. The plaintiff’s trademark was actually infringed by the Austrian retailers in Austria. However, the defendant knowingly assisted the trademark infringement as it should have known from the amount of goods bought as well as from the identity of the buyers that the goods were purchased for resale in Austria. Thus, being an accomplice to the action, the defendant may be sued at the place where the offence occurred.