German reference for a preliminary ruling on jurisdiction - Hi Hotel

Abstract

According to Article 5(3) of Regulation 44/2001 (‘Brussels I’), a person domiciled within the sovereign territory of a Member State may be sued in another Member State in the courts for the place where the harmful event occurred or could occur if an unlawful act is committed there. Infringements of intellectual property rights and copyrights are unlawful acts. According to the established case law of the Court of Justice of the European Union (CJEU), the term ‘unlawful act’ is the object of an autonomous interpretation. It is therefore not surprising that the courts of the Member States frequently refer questions to the CJEU regarding details of unlawful acts, the place where the unlawful act is committed, the place where the damage occurs and issues concerning perpetration and participation. Nor is it surprising that the CJEU has had to provide definitions and draw boundaries in numerous rulings. For example, in its ruling of 19 April 2012 on a question referred by the Austrian Supreme Court (OGH), the CJEU had to decide where the infringement of a trade mark registered in a Member State takes place if a party advertises on the website of a search engine operated under the top-level domain of another Member State, using a keyword identical to the trade mark. Parallel to the decision published below, the German Federal Court of Justice (BGH) submitted another question to the CJEU on the interpretation of Article 5(3) of Brussels I, also on 28 June 2012.