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“Wintersteiger III”

European Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, Art. 5 No. 3; Design Protection Act, Sec. 10(a)

  1. 1.

    The jurisdiction of the court for infringements of trade mark and unfair competition law on the Internet does not depend on whether the infringement or the other business activity of the enterprise against whom the action has been brought has a particular (sufficient) reference to this country; instead, it is sufficient if the website can be accessed – which it can as a rule – and the plaintiff claims that this has infringed trade mark rights or that this accessibility or dissemination has an effect (of relevance under unfair competition law) on the market of this country.

  2. 2.

    Whether a trade mark has been infringed by advertising on the Internet requires a domestic reference going beyond the mere accessibility of a website. Instead, the website must at least also be targeted at domestic users. This question is to be assessed objectively. It will only be upheld if the advertising has or at least can realistically be expected to have a commercially relevant domestic reference, hence not a mere trivial effect on the domestic market (“commercial effect”). The criteria for the assessment include the top-level domain, the language of the website, its content and the commercial orientation of the enterprise.

  3. 3.

    Nor does mere accessibility of the website suffice for an infringement of unfair competition law. Instead, it must be claimed and supported by evidence that the booking of the keyword on the website had or at least could have had more than trivial effects on the domestic market.

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Decision of the Supreme Court (Oberster Gerichtshof) 10 July 2012 – Case No. 4 Ob 82/12f. “Wintersteiger III”. IIC 44, 992–998 (2013).

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