Hummel Holding A/S v Nike Inc. and Nike Retail B.V.
Date: 2017-05-18
22


It must be noted that the Court has consistently held that it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, having regard not only to its wording but also to the context of the provision and the objective pursued by the legislation in question (see, inter alia, judgments of 18 January 1984, Ekro, 327/82, EU:C:1984:11, paragraph 11; of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 14; and of 16 July 2015, Abcur, C‑544/13 and C‑545/13, EU:C:2015:481, paragraph 45).
26


Thus, notwithstanding the principle that Regulation No 44/2001 applies to proceedings relating to an EU trade mark, the application of certain provisions of that regulation, in particular the rules in Articles 4 and 5(1), to proceedings in respect of the actions and claims referred to in Article 96 of Regulation No 207/2009 is excluded by Article 94(2) of that regulation. In the light of that exclusion, the jurisdiction of the EU trade mark courts laid down in Article 95(1) of Regulation No 207/2009 to hear the actions and claims referred to in Article 96 of that regulation results from rules directly provided for by that regulation, which have the character of lex specialis in relation to the rules provided for by Regulation No 44/2001 (see, to that effect, judgment of 5 June 2014, Coty Germany, C‑360/12, EU:C:2014:1318, paragraphs 26 and 27).
35


That jurisdictional rule is a general principle, which expresses the maxim actor sequitur forum rei, because it makes it easier, in principle, for a defendant to defend himself (see, to that effect, judgments of 13 July 2000, Group Josi, C‑412/98, EU:C:2000:399, paragraph 35, and of 19 February 2002, Besix, C‑256/00, EU:C:2002:99, paragraph 52). Such is the case, as the Advocate General stated in point 82 of his Opinion, where a party is required to defend itself before the courts of a Member State in which it has an establishment and with which it is therefore more closely linked.
37


It follows from such a broad interpretation that there must be visible signs enabling the existence of an ‘establishment’ within the meaning of Article 97(1) of Regulation No 207/2009 to be easily recognised. As the Advocate General stated in point 52 of his Opinion, the existence of an establishment thus requires a certain real and stable presence, from which commercial activity is pursued, as manifested by the presence of personnel and material equipment. In addition, that establishment must have the appearance of permanency to the outside world, such as the extension of a parent body (see, to that effect, judgments of 22 November 1978, Somafer, 33/78, EU:C:1978:205, paragraph 11; of 18 March 1981, Blanckaert & Willems, 139/80, EU:C:1981:70, paragraph 12; of 9 December 1987, SAR Schotte, 218/86, EU:C:1987:536, paragraph 10; and of 19 July 2012, Mahamdia, C‑154/11, EU:C:2012:491, paragraph 48).
38


In that regard, it is irrelevant whether the establishment on the territory of a Member State of an undertaking whose seat is outside the European Union has legal personality or not (see, to that effect, judgment of 15 December 2011, Voogsgeerd, C‑384/10, EU:C:2011:842, paragraph 54). Third parties must thus be able to rely on the appearance created by an establishment acting as an extension of the parent body (see, to that effect, judgment of 9 December 1987, SAR Schotte, 218/86, EU:C:1987:536, paragraph 15).