I have been absolutely swamped in recent months and as a result, the blog has suffered. In coming up for some air, I decided to first tackle some of the oldest drafts in my blog queue. First up is CJEU C-832/21 Beverage City & Lifestyle GmbH et al v Advance Magazine Publishers Inc held let’s say a little while ago (September 2023; did I flag I have been busy?) which in essence clarifies CJEU Nintendo.
The EU Trademark Regulation 2017/1001 has lex specialis conflict of laws provisions viz Brussels Ia. However it does not specify an anchor mechanism and therefore [26] Article 8(1) Brussels Ia applies in full.
I discussed Richard de la Tour AG’s Opinion here. As I summarised when I tweeted the judgment, the CJEU has essentially followed the AG’s suggestion of a flexible interpretation of the A8(1) conditions:
with respect to the the A8(1) (compare CJEU The Tatry) condition relating to the existence of the “same situation of law”, this [31] “appears to be satisfied” (final check is for the national court) where the claim concerns the protection of claimant’s exclusive right over EU trade marks, which is based on EU trademark law identical to all EU Member States. [29] Any difference in the legal bases under national law of claims relating to that protection is irrelevant to the assessment of the risk of conflicting decisions.
further, with respect to the condition of “same situation of fact”, [37]
“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.”
[38] Anchor defendant Beverage City & Lifestyle was connected to Beverage City Polska by an agreement for the exclusive distribution of the energy drink ‘Diamant Vogue’ in Germany.
“That exclusive contractual relationship between those two companies 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.”
The CJEU throughout the judgment emphasises the sound administration of justice objective supporting the joinder mechanism.
Geert.
EU Private International Law, 4th ed. 2023, 2.505 ff, 2.518.