The cross-border nature of domain names raises the issue of the determination of the jurisdictionally competent court in cases of infringements caused by the registration or use of these signs.
How to appreciate the destination of a website? Use of the circumstantial leads method
According to the theory about the focalisation, the French judge is competent where the website in question is targeted to the French public, not merely when it is accessible from France (Com. 11 January 2005). This solution has been restated many times (Com. 29 March 2011; Com. 3 May 2012). The method takes into consideration several leads, such as the extension of the domain name, the language of the website or even the destination of deliveries. However, these criteria taken separately are not relevant.
This circumstantial leads method has been used by the Court of Justice of the European Union, in a decision of 12 July 2011, where it interpreted on a case-by-case basis several relevant leads in order to determine the target of a website.
Foreign ccTLDs and competent jurisdiction
However, the issue arises in case of foreign ccTLDs, which are national extension (<.ch> for China, <.de> for Germany, etc.). The determination of the target is therefore more complex, evidence as to the targeting of the French public must be set forth. In its judgment of 14 January 2016, the TGI (Tribunal de Grande Instance) of Paris held that an Italian website offering a French translation of its contents, as well as the contact details of one of its distributors located in France targeted a French public, with which it shared a significant and sufficient link. The court based its decision on Article 5-3 of the Community Regulation n° 4/2001 which provides that “A person residing on the jurisdiction of a Member State can be sued in another Member State : […] 3) Regarding unlawful or quasi-unlawful matters, before the local tribunal where the offence was committed or may be committed”. In the present case, the TGI (Tribunal de Grande Instance) of Paris is therefore competent in cases relating to the use of the trademark of a French company on a .it website.
A contrario, the Court of Appeal of Nancy (Cour d’Appel de Nancy), had, on 13 December 2010 refused to recognise the competence of French jurisdictions in a case concerning the website <carbone.nl> on the grounds that it was not in French language and did not offer products for sale in France.
It is therefore necessary to be careful and take into account all possible leads in order to identify the target of an Internet website, and thus the competent jurisdiction in case of dispute.
Read the decision here