Wintersteiger 1: the facts

I don't mind the skiing, said Fritz,
but I don't see why I have a do it
while dressed in a tea-cosy

tytoc collie posted a note last week on Case C-523/10 Wintersteiger, which posed some interesting-looking questions concerning choice of jurisdiction in the multi-country European Union, when it comes to suing the user of a trade mark-infringing internet search keyword and working out where the location of the "harmful event" takes place (see Katpost here).  These questions will be answered, or at any rate nibbled on, by the Court of Justice of the European Union before the referring court in Austria then applies the answers to the facts before it.  Not knowing anything about the background, tytoc collie asked if any reader could be of assistance. Fortunately, one has, and this is what she tells us:

"Wintersteiger produces and distributes service machinery for skis and snowboards inclusive of accessories and spare parts on a worldwide basis. It owns an Austrian trade mark registration with priority of 25 January 1993 covering goods and services in classes 3, 6, 7, 8 , 9, 12, 14, 16, 20, 25, 28, 37 and 42, including machines for the servicing of skis, snowboards plus accessories and spare parts, as well as specific repair and maintenance services and related machinery.

Products 4U Sondermaschinenbau GmbH is a German-based company which also develops and distributes machines for the service of skis and snowboards. It also sells accessories for machines by other manufacturers, including accessories for machines produced by Wintersteiger. These accessories do not originate from Wintersteiger, nor are they authorised by Wintersteiger. Nevertheless Products 4U sells them by reference to "Wintersteiger-Zubehoer" (Wintersteiger-accessories). Like Wintersteiger, Products 4U trades worldwide, and sells its products in particular also in Austria.

Skiing accessory

Since 1 December 2008 Products 4U had reserved the AdWord "Wintersteiger" on Google.de. When typing in "Wintersteiger", on 11 January 2010, as the first natural search result the link of the Austrian company Wintersteiger appeared on Google.de. On the right hand side, next to the search results, under the heading "Anzeige" (Ads) a text block with an advertisement by Products 4U appeared. The ad text was headed by the word "Skiwerkstattzubehoer" (ski service station accessories).  This word was in blue and was underlined. Underneath this heading, and in two lines were the words "Ski and Snowboardmaschinen" (Ski and snowboard machines) and "Wartung und Reparatur" (service and repair). The bottom line included Product 4U's internet address in green letters. By clicking the heading "Skiwerkstattzubehoer", one was led to the offer of "Wintersteiger-Zubehoer" on Product 4U's website. The Google ad did not include a note that there was no commercial link between Products 4U and Wintersteiger.

Products 4U does not own the AdWord "Wintersteiger" on the Austrian Google.at.

Wintersteiger claims that Products 4U infringes its Austrian trade mark by advertising on Google.de since the website is accessible in Austria and is in the German language. Accordingly, the website as well as ads on this website target Austrian users. The company claims that it is irrelevant that accessibility of the website cannot be limited territorially for technological reasons.

Products 4U counters that the Austrian courts have no jurisdiction and that it is not infringing the mark. Google.de was directed exclusively at the German user, as was apparent from the layout of the website. The ad therefore was only directed at German customers. If Products 4U had wanted to address Austrian customers it would also have booked an ad on the Austrian Google.at website.

The first instance court refused the application for an interim injunction on the basis of lack of jurisdiction. Even though Google.de was accessible in Austria, Google's services were offered under country-specific top-level domains and so the website Google.de was only directed at Germany. There was no sufficient connection to Austria.

Surfing accessory

The appeal court accepted its international jurisdiction, but rejected the applicant's claim and the application for an interim injunction. While the fact that Google had country specific top-level domains did not mean that Google.de was only directed at internet users in Germany, the website was accessible in Austria and in German language, it was therefore also directed at the Austrian user. It was not entirely out of the question that the Austrian user, especially those near the Austrian-German border or out of interest for German products, would search for products or companies on Google.de. Therefore the court had international jurisdiction. However, Products 4U had not infringed the trade mark rights of Wintersteiger. The trade mark did not appear in Product 4U's ad; the ad did not give the impression that there was a commercial link between Wintersteiger and Products 4U".

This is hugely useful, says tytoc collie -- and thanks so much for letting us know!  Merpel wants to know why Austrians aren't supposed to know the names of the parties, who are identified only as W********** and P******** respectively, whereas any Austrian who wants to know who they are can easily find the names if they click this Dutch site here.  Tufty says, it's good and helpful to learn that the claimant in these proceedings is W**********.  I might have thought it was W******* or even W************* ...