OLG München; 2016-06-23; 6 U 3129/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGMUEN:2016:0623.6U3129.15.0A
Date: 2016-06-23
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0623(51)_ENG_SUMJURE
JURE summary
JURE summary
This case dealt with by the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) concerned the international jurisdiction of the German courts in relation to a trademark infringement.
The plaintiff is the owner of several European Union trademarks registered for, amongst other items, perfumes. Defendant 1, domiciled in Parma, Italy, whose chairman of the board of directors is defendant 2, trades with perfumes and cosmetic products.
In 2012, defendant 1 was contacted by a company domiciled in Germany. As a result, 150 perfumes of the Davidoff Cool Water brand were handed over to a freight forwarder commissioned by the German company. The plaintiff considered this act to represent an infringement of its trademark rights, claiming that those perfumes had been placed on the European market for the first time without its consent.
The plaintiff filed an action against the defendants seeking a cease and desist order and the refund of the respective pre-trial warning costs. The Landgericht München (hereinafter ‘the Court of First Instance’) dismissed the action of the plaintiff as inadmissible, claiming the lack of international jurisdiction. The plaintiff lodged an appeal against this decision.
With respect to the existence of the jurisdiction of the German courts, under Article 97(5) of Regulation (EC) No 207/2009 (1) it depends whether the plaintiff claimed that the defendant’s act of infringement had been committed on the domestic territory and this claim could not be excluded from the start.
The response of defendant 1 to the enquiry placed by the German company requesting to be informed by email about the stock and provided with the current pricelists is to be interpreted as an invitation to submit an offer aiming to conduct a sale of perfumes from the current products offer to a customer who was known to be domiciled in Germany. Contrary to the opinion of the Court of First Instance, the German courts held international jurisdiction due to the fact that defendant 1 played an active part on the domestic territory in the conclusion of the purchase agreement of the respective Davidoff perfumes (the topic of active participation being earlier dealt with in the case-law of the Court of Justice of the European Union).
Article 7(2) of the Brussels I Regulation (recast) (2) stipulates that in matters relating to tort, delict or quasi-delict, a person domiciled in a Member State may be sued in another Member State in the courts for the place where the harmful event occurred or may occur.
The Court of Appeal modified the decision of the Court of First Instance and admitted the filing of a revision.
(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark.
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.