In that regard, the linking factor provided for by Article 93(5) of Regulation No 40/94 refers to the Member State where the act giving rise to the alleged infringement occurred or may occur, not the Member State where that infringement produces its effects. Consequently, jurisdiction under that article may be established solely in favour of Community trade mark courts in the Member State in which the defendant committed the alleged unlawful act.

Under the combined provisions of Articles 90(2) and 92 of Regulation No 40/94, the application of Article 5(3) of the Convention of 27 September 1968 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, to which Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters corresponds, to Community trade mark infringement actions is expressly precluded. Therefore, the concept of ‘the Member State in which the act of infringement has been committed or threatened’, referred to in Article 93(5) of Regulation No 40/94, must be interpreted independently of the concept of ‘the place where the harmful event occurred or may occur’ referred to in Article 5(3) of Regulation No 44/2001.

The concept of ‘the Member State in which the act of infringement has been committed’ in Article 93(5) of Regulation No 40/94 on the Community trade mark must be interpreted as meaning that, in the event of a sale and delivery of a counterfeit product in one Member State, followed by a resale by the purchaser in another Member State, that provision does not allow jurisdiction to be established to hear an infringement action against the original seller who did not himself act in the Member State where the court seised is situated.

Since Article 14(2) of Regulation No 40/94 on the Community trade mark provides expressly that actions concerning a Community trade mark may be brought under the law of Member States relating in particular to civil liability and unfair competition, the jurisdiction to hear such actions is not governed by Regulation No 40/94 and must be determined on the basis of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Therefore, with regard to a claim based on the infringement of the national law against unfair competition, Article 5(3) of Regulation No 44/2001 is applicable in order to establish the jurisdiction of the court seised.

Article 5(3) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the event of an allegation of unlawful comparative advertising or unfair imitation of a sign protected by a Community trade mark, prohibited by the law of the Member State in which the court seised is situated, that provision does not allow jurisdiction to be established, on the basis of the place where the event giving rise to the damage resulting from the infringement of that law occurred, for a court in that Member State where the presumed perpetrator who is sued there did not himself act there. By contrast, in such a case, that provision does allow jurisdiction to be established, on the basis of the place of occurrence of damage, to hear an action for damages based on that national law brought against a person established in another Member State and who is alleged to have committed, in that State, an act which caused or may cause damage within the jurisdiction of that court.

The expression ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation No 44/2001 is intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the applicant, in the courts for either of those places. Since the identification of one of the linking factors enables the court objectively best placed to determine whether the elements establishing the liability of the person sued are present to take jurisdiction, it follows that only the court in the jurisdiction of which the relevant linking factor is situated may validly be seised. In that regard, in circumstances in which only one among several presumed perpetrators of the alleged harmful act is sued before a court within whose jurisdiction he has not acted, the event giving rise to the damage may not be regarded as taking place within the jurisdiction of that court for the purpose of Article 5(3) of Regulation No 44/2001.

Moreover, with regard to damage resulting from infringements of an intellectual and commercial property right, the occurrence of damage in a particular Member State is subject to the protection, in that State, of the right in respect of which infringement is alleged. That requirement is capable of being applied to cases in which the protection of such a right by means of a national law against unfair competition is at issue. In those circumstances, an action relating to an infringement of that law may be brought before the national courts, to the extent that the act committed in another Member State caused or may cause damage within the jurisdiction of the court seised.

(see paras 46, 48, 50, 55-57, 59, operative part 2)