Oberster Gerichtshof, Urteil vom 11/12/2007 17 Ob 22/07w
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2007:RS0122946
Date: 2007-12-11
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82007AT1211(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is a company, having its seat in Austria, which owns the Community trade mark "PERSONAL SHOP". The defendant, having its seat in Germany, operates the domain "personalshop.de". The plaintiff applied for an interim injunction, due to the infringement of its Community trade mark, prohibiting the defendant to use the name "personalshop". The Landesgericht of Innsbruck (AT) accepted jurisdiction according to Article 5(3) Brussels I Regulation and dismissed the application for a protective measure. The appellate court affirmed the judgment, also with regard to jurisdiction. It held that claims arising from the infringement of intellectual property rights fell within Article 5(3) Brussels I Regulation.
The OGH (AT) allows the plaintiff's appeal. However, it holds that jurisdiction cannot be established according to the Brussels I Regulation. A special system of jurisdiction according to the Community Trade Mark Regulation applies to infringements of Community trade marks. Even though this case relates to jurisdiction over proceedings for a protective measure, the court finds that the court seised at the place where the resulting damage was sustained lacks jurisdiction over the substance of the case. According to its wording, Article 93(5) of the Community Trade Mark Regulation only establishes jurisdiction at the place where the harmful event occurred. The OGH leaves the question unanswered, whether the ECJ's jurisprudence on Article 5(3) Brussels I Regulation, which in cases of a complex tort establishes jurisdiction at the place where the resulting damage was sustained, can be applied to Article 93(5) Community Trade Mark Regulation. The wording as well as the objective of this provision could however speak for a limitation to the place where the tortuous act was committed.