The matter at hand

Beverage City Polska (“BCP”) is a company which manufactures, advertises and distributes an energy drink under the name ‘Diamant Vogue’. BCP and its managing director are domiciled in Poland. BCP is connected with Beverage City & Lifestyle GmbH (“BCL”) through an exclusive distribution agreement for Germany. BCL and its managing director are domiciled in Germany. Despite the similarity in name, the two companies do not belong to the same group.

Advance Magazine Publishers (“AMP”), established in New York, is the proprietor of various EU trade marks containing the word element ‘Vogue’, which it claims are trade marks with a reputation. Taking the view that its trade marks had been infringed, AMP brought an action against BCP, BCL and their respective managing directors before the Landgericht Düsseldorf (Regional Court Düsseldorf, Germany), for injunctive relief throughout the European Union.

The Landgericht Düsseldorf upheld the action brought by AMP, basing its international jurisdiction in so far as concerns BCP and its managing director on Article 8(1) Brussels I bisCouncil Regulation [EU] No 1215/2012 of 12 December 2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [recast]. BCP and its managing director brought an appeal against this decision before the Oberlandesgericht Düsseldorf (Higher Regional Court Düsseldorf, Germany), arguing that the German courts do not have international jurisdiction to hear and determine the action brought against them.

The referring court considers that the international jurisdiction of the German courts is subject to the condition that, in accordance with Article 8(1) Brussels I bisCouncil Regulation [EU] No 1215/2012 of 12 December 2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [recast], the claims against all defendants are so closely connected, that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. However, the referring court is uncertain whether the existence of an exclusive distribution agreement between BCP and BCL is sufficient to satisfy the condition laid down in Article 8(1) Brussels I bisCouncil Regulation [EU] No 1215/2012 of 12 December 2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [recast].

By its question, the referring court seeks to ascertain whether Article 8(1) Brussels I bisCouncil Regulation [EU] No 1215/2012 of 12 December 2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [recast] must be interpreted as meaning that a number of defendants which are connected by an exclusive distribution agreement and are domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled before which, in the context of an infringement action, claims have been brought against all of those defendants by the proprietor of an EU trade mark where they are each accused of having committed a materially identical infringement of that trade mark.

The judgment of the ECJ

The ECJ first notes that, Article 8(1) Brussels I bisCouncil Regulation [EU] No 1215/2012 of 12 December 2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [recast] states “that a person domiciled in a Member State may be sued, where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings” (paragraph 27). With reference to Solvay (C-616/10), the ECJ notes that the objective of this rule meets “the wish to facilitate the sound administration of justice, to minimise the possibility of concurrent proceedings and thus to avoid irreconcilable outcomes if cases are decided separately” (paragraph 34). This rule of special jurisdiction must be given a strict interpretation as it derogates from the principle set out in Article 4 Brussels I bisCouncil Regulation [EU] No 1215/2012 of 12 December 2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [recast], that defendants shall be sued in the courts of the Member State the defendant is domiciled.

In order to assess whether there is a connection between the various claims brought before it, the national court should take into account that a number of companies established in different Member States are each separately accused of the same acts of infringement with respect to the same goods. The ECJ, subsequently, considers that “the existence of a connection between the claims concerned relates primarily to the relationship between all the acts of infringement committed rather than to the organisational or capital connections between the companies concerned. Similarly, in order to establish the existence of the same situation of fact, particular attention should also be paid to the nature of the contractual relationship between the customer and the supplier” (paragraph 37). The agreement for the exclusive distribution of the energy drink between BCP and BCL, “may make it more foreseeable that the acts of infringement of which they are accused may be regarded as concerning the same situation of fact, capable of resulting in a single court having jurisdiction to rule on the claims brought against all of the actors who committed those acts” (paragraph 38).

The ECJ further considers, with reference to Hydrogen Peroxide (C-352/13), “that the rule laid down in Article 8(1) of Regulation No 1215/2012 cannot be interpreted as allowing an applicant to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the State in which that defendant is domiciled and, thus, of circumventing the rule of jurisdiction contained in that provision by artificially creating or maintaining the conditions for the application of that provision” (paragraph 43). Nevertheless, the possibility that a claim is brought against a number of defendants solely to oust the jurisdiction of the state where one of them is domiciled will be ruled out when there is a close connection between the claims brought against each of the defendants. Therefore, it is for the court seized “to satisfy itself that the claims brought against the sole co-defendant whose domicile gives rise to the jurisdiction of the court seized are not intended artificially to satisfy the conditions for the application of Article 8(1) of Regulation No 1215/2012” (paragraph 45).

The ECJ concludes that defendants which are domiciled in different Member States may be sued in the courts where one of them is domiciled, if these claims have been brought against all of those defendants by the proprietor of an EU trade mark, they are each accused of having committed a materially identical infringement of that trade mark and they are connected by an exclusive distribution agreement.