On 19 April 2012, the Court of Justice of the European Union
issued a preliminary ruling (Case
C-523/10 Wintersteiger AG v Products 4U Sondermaschinenbau
GmbH) on the relationship between jurisdiction and a
country-specific search engine website.
The matter involved the Austrian company Wintersteiger, which
makes and sells various ski and snowboard servicing tools,
replacement parts and accessories. Wintersteiger is also the holder
of the Austrian trademark Wintersteiger. A German company Products
4U makes and sells, inter alia, accessories for
Wintersteiger products, which nevertheless have not been authorized
for sale by Wintersteiger.
Products 4U had reserved an AdWord in the online advertising
scheme developed by Google to be used for searches carried out on
the google.de website, which is mainly directed at German users.
Whenever the word Wintersteiger was entered into the search engine,
an advertising link appeared on the right-hand side of the website,
directing the user to the Products 4U website. This advertisement
did not appear on the Austrian Google website google.at. However,
google.de could be entered from Austria and the countries also
share the same language
The question presented to the CJEU by the Supreme Court of
Austria was essentially whether an Austrian court could hear the
case based on the Article 5(3) of the so called Brussels I
Regulation (Council Regulation (EC) No
44/2001), which regulates in which circumstances a person
domiciled in a Member State may be sued in another Member State.
More specifically, the question presented to the CJEU was how to
apply Article 5(3) in an injunction matter, where a trademark was
claimed to be infringed through the use of a keyword (AdWord) on a
search engine website with a country-specific top-level domain,
when that domain was other than of the country, where the court has
The CJEU considered that jurisdiction in the matter could be
established based on the existence of a particularly close
connecting factor between the dispute and the court of the place
where the harmful event occurred. Thus, it ruled that an action may
be brought before either the court of the Member State in which the
trade mark is registered, or the court of the Member State of the
place of establishment of the advertiser.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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