Oberster Gerichtshof; 2014-07-17; H, GmbH; N. K.; 4 Ob 15/14f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2014:0040OB00015.14F.0717.000
Date: 2014-07-17
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82014AT0717(51)_ENG_SUMJURE
JURE summary
JURE summary
An Austrian company with limited liability (the “plaintiff”) sued a Slovak natural person (the “defendant”) on omission, financial statement and publication of the judgement.
Without consent, the defendant unlawfully used the plaintiff’s Community trade mark registered at the Office for the Harmonization in the Internal Market in the name of the his gym in Slovakia. The gym’s web site is available in Austria, though in Slovak language only.
The plaintiff established jurisdiction on the provisions of the Regulation on the Community trade mark (the “CTMR”).
The Court of First Instance (Handelsgericht Wien) dismissed the action in limine (i.e. by decision without previous hearing or taking of evidence). Domestic jurisdiction did not apply in this matter as Article 93(5) of the CTMR did not generally establish the jurisdiction of courts in matters, which are based on a domestic act of infringement on web sites. Users in Austria must be affected actually.
The appeals court (Oberlandesgericht Wien) confirmed the first decision of the Court of First Instance. The defendant’s action had no effect on the plaintiff in Austria. The place of the occurrence of the violation was in Slovakia where the plaintiff had no economic interests.
However, the appeal was admissible due to lack of case law on whether the infringement of Community trade marks through illegal use in the internet could cause jurisdiction at the place where the affected web site can be retrieved or whether further impairment of the plaintiff’s commercial interests was required.
The plaintiff’s appeal, which seeks the repeal of the lower courts’ decisions, is permissible and entitled.
As the Supreme Court of Justice (the “Supreme Court”) establishes in the decision, the Austrian court’s jurisdiction could arise only from Article 97(5) of the CTMR. According to this Article, also Article 24 of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("Brussels I Regulation") was to be applied. This can be considered if the defendant enters the appearance before the Austrian court, but not for the reason that the defendant merely wants to assert the lack of jurisdiction.
If the defendant on the procedure in Austria does not enter the appearance, the Court of First Instance (Handelsgericht Wien) should declare lack of jurisdiction by virtue (Article 26 of the Brussels I Regulation).
According to the Supreme Court’s settled case law, the Court of First Instance is to deliver the action even in such cases over which it considers to have no jurisdiction.
Within the scope of the regulations, therefore lack of international jurisdiction must not be assumed by virtue and the action must not be dismissed in limine. The defendant must have the opportunity to enter the appearance.
The Supreme Court followed the plaintiff’s appeal and repealed the lower courts’ decisions. The Court of First Instance is obliged to begin the procedure by delivering the notice of the petition to the defendant.