Oberster Gerichtshof, Urteil vom 29/05/2001 4 Ob 110/01g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:0040OB00122.01X.0529.000
Date: 2001-05-29
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82001AT0529(03)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a company seated in Germany, is the owner of the trademark “B” registered and protected internationally as well as in Austria, under which it sells mainly clothing. It requests from the defendant company, also domiciled in Germany, the interdiction to use the trademark “B” whilst advertising cigarettes on the internet, in the case where the latter is available in Austria. The sale of “B” cigarettes is only conducted outside the German speaking area, thus not in Austria, even if the website does not expressly mention this. The Austrian court of first instance did not consider itself competent since in the absence of sales in Austria no adequate connection to Austria exists within the meaning of Article 5(3) Brussels Convention. This was affirmed by the court of appeal since the disclaimer “not all marks (...) are available everywhere” is considered sufficient and the missing connection with Austria is recognisable.
The OGH (AT) considers that it does not depend, in cases of competition infringements via the internet concerning the jurisdiction of the court of Article 5(3), of the market concerned by the infringement of the trademark but whether the trademark is used on the website in violation of the trademark rights by the infringer. In this regard it is enough that the advertisement of the infringer can be consulted, without the mention of the unavailability of the goods on the market in which an infringement of a trademark could occur. Here, the presentation and the type of goods, which sale in a neighbouring state is indicated, allow to conclude that the offer is also orientated towards the Austrian market. This is an infringement within the meaning of Article 5(3) since the general mention on the limited availability does not constitute a sufficient disclaimer. The damages occur at all places where the website can be consulted, so that this does not depend on a sale of cigarettes in Austria.