LG Hamburg; 2016-12-01; 327 O 258/13
Decision by national courts in the field of European Union law — ECLI:DE:LGHH:2016:1201.327O258.13.0A
Date: 2016-12-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE1201(51)_ENG_SUMJURE
JURE summary
JURE summary
The operator of clothing shopping stores under the company name ‘Peek & Cloppenburg’ (hereinafter ‘the plaintiff’) filed an action against an Austrian company (hereinafter ‘the defendants’) who also conducted business under the name ‘Peek & Cloppenburg’ in the clothing retail sector, this entity being legally and economically independent of the plaintiff, seeking the provision of information and the determination of the compensation for damage.
The defendant conducted its business solely in Austria without any shipping activities to Germany.
The subject-matter of the dispute was an advertisement which the defendant posted on its facebook page while using the brand of ‘Peek & Cloppenburg’ and ‘P & C’. According to the plaintiff, the defendant had no rights to these signs in Germany and there was a likelihood of confusion due to the same signs and the branch.
The defendant contested the international jurisdiction of the Landgericht Hamburg (hereinafter ‘the Court of First Instance’) claiming that the all of its activities on facebook are always conducted under the name ‘Peek & Cloppenburg Österreich’.
The Court of First Instance had international jurisdiction under Article 5(3) of the Brussels I Regulation (1). The action was admissible and justified.
The claims of the plaintiff were upheld on the basis of Article 15(2), (4), (5) and (19) of the MarkenG (2). It is always necessary to take into account all relevant circumstances of the individual case.
The likelihood of confusion could be established in the case. The reference of the defendant in the advertisements being directed to the Austrian market, even though clearly discernible, did not change this fact.
The defendant cannot also defend itself claiming that the breach of rights in Germany was only a unavoidable auxiliary aspect of technical or organizational circumstances as it was possible to limit the access to the Facebook page and the spreading of the advertisements exclusively to a sole territory.
The Court of First Instance decided in favour of the plaintiff according to its application.
(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.
(2) Markengesetz (the Trade Mark Act).