Oberster Gerichtshof, Beschluß vom 27/11/2001 4 Ob 273/01
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2001:RS0115926
Date: 2001-11-27
Subject matter: Brussels Convention of 27 September 1968
Origin: Austria

82001AT1127(05)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The two parties have their seat in Germany. The plaintiff requested the issue of a provisional measure in Austria, forbidding the defendant to sell certain products in Austria that one could confuse with the plaintiff’s products. The plaintiff had previously already obtained such a judgment before the Landgericht of Cologne (DE). Now the defendant also offers the products in Austria. The plaintiff considers that it should also commence proceedings in Austria, since an enforcement of the title obtained in Germany is not possible according to the Lugano Convention. The Austrian court of first instance declares itself incompetent on the ground of lis pendens.
The OGH (AT) considers that the German judgment cannot be the basis of a claim for enforcement, based on the breach of the restraining order committed by the defendant in Austria. Indeed the judgment does not contain any declaration on the fact whether it also applies to actions not performed in Germany. However, the Landgericht of Cologne has exclusively based its decision on the German trademark and competition law. Thus, it seems that this restraining order only applies in Germany. The plaintiff cannot stop an act of unfair competition by the defendant in Austria on the sole basis of the title issued in Germany. Therefore a need for legal protection exists in Austria by way of a legal action. In this case, the Brussels Convention applies and not the Lugano Convention. The Austrian court has jurisdiction in such proceedings for protective measures according to Article 5(3) Brussels Convention, since claims on the basis of unfair competition and infringement of intellectual property fall within this rule and since according to Article 24 Brussels Convention, there is no identity of the action in the sense of lis pendens (Article 21 Brussels Convention) between provisional measures and the main case.