It is a truism to say bluntly that Internet was a peculiar incentive to forum shopping issues. Given the international nature of the Internet, many forums may have jurisdiction over the very same dispute. However, such a view was framed and curtailed thanks to case law of Member States. In the wake of the Google AdWords saga, the opinion released by the advocate general is of high relevance. The opinion tackles a tricky question. When Private International Law issues blend with Google AdWords, the result cannot but be hazardous. Nonetheless, the advocate general rides out the intricacies of the case.
The plaintiff was an Austrian company which was the owner of the trademark WINTERSTEIGER registered both in Germany and in Austria for ski and snowboard service machines. Its main competitor, Products 4U, provided it with products for its service machines. Products 4U registered as a commercial link through Google.de the WINTERSTEIGER trademark. The commercial link was available through Google.de and was written in German. The advertisement encompasses the following terms: “ski workshop accessories”, “ski and snowboard tools,” maintenance and repair”. When Internet users click on the commercial link they were redirected towards the German Company’s website whose layout bears the title “Wintersteiger Accessories”.
The Austrian company launched a lawsuit before the Austrian Court. Notwithstanding, The Court of first instance averts that it does not have jurisdiction over the dispute on the ground that Google.de was targeting German web users only. Wintersteiger lodged an appeal and this time the Appeal Court availed itself to have jurisdiction over the matter. It is the language of the commercial link which triggers its jurisdiction as it was written in German, a language commonly spoken either in Germany and Austria. Nevertheless, the Appeal Court dismissed the case on the merits. Austrian judges contended that the commercial link does not imply that there is a commercial link between both parties. The Austrian ski and snowboard company went before the Supreme Court which decided to ask miscellaneous preliminary questions on the interpretation of the article 5(3) of the Brussels I Regulation to the European Court of Justice:
1.1 Does the Austrian Court have jurisdiction over the dispute to the extent that a trademark was registered as a commercial link through Google.de?
1.2 As the commercial link is available through Google.at, is this link sufficient enough to trigger the jurisdiction of the Austrian Court?
1.3 Is the jurisdiction of a Court triggered in the light of a combo of evidence and notably a combo of criteria which come in addition to the availability of the website on the territory of the Court?
The underpinning question was to know which Court can have jurisdiction when a tort is committed in another Member State while taking into account the sacrosanct territoriality principle which is at the cornerstone of trademark law.
The advocate general gave the following interpretation of the article 5(3) of the Brussels I Regulation:
-The Court which has jurisdiction may be those of the Member State where the trademark was registered. In this case, the WINTERSTEIGER trademark was registered in Austria since 1993 and also in Germany.
-The Court which has jurisdiction may also be the one where the necessary means were used to produce the tort to the registered trademark in another Member State. This interpretation may trigger the jurisdiction of German Courts in that case as the commercial link was registered under the umbrella of Google.de.
The European Court of Justice is on the verge to rule over the matter in the light of the advocate general’s opinion, which is consultative in nature but which is rarely disregarded. This decision is an additional case law to the pointillist Babel tower which is constituted by Google AdWords.