The connection requirements in the forum of multiple defendants under the Brussels System

Co-defendants linked by an exclusive distribution contract in infringement of a European industrial property rights, particularly the European Union trade mark

Abstract

In the basic instrument of the European system on international jurisdiction in civil and commercial matters, Brussels I Regulation Recast, a specific jurisdiction is provided for within the special jurisdiction in the event of multiple defendants, whereby they may be sued before the court of the domicile of any of them. The application of the forum of multiple defendants in Article 8(1) is necessarily connected with the cases of connectedness and the potential danger of ineffectiveness of the decisions that may eventually be settled down in the different proceedings in different Member States. The settled doctrine of the CJEU determines that for the application of this rule it is required that closely connected claims, which may give rise to irreconcilable judgments, must arise “in the context of the same legal and factual situation”. The area of cross-border litigation for infringement of industrial property rights is particularly controversial as regards the application of Art. 8.1, as regards the finding of identity of the legal situation, but also for assessing the same factual situation when there are several operators involved who carry out potentially infringing activities in different States. The recent judgment of the Court of Justice in Case C-832/21 Beverage City Polska is a clear example of this. This judgment supplements the existing case-law by providing further clarification of the elements and factors of assessment for determining the existence of the same factual situation. In a context such as that in the main proceedings, the Court is in favour of cases in which the co-defendants are bound by an exclusive distribution contract, under which they market the same goods in different Member States which infringe an EU trade mark right, being assessed as the same factual situation. The approach adopted by the Court of Justice as regards the (rebuttable) presumption that the same factual situation is presumed to exist as a result of the existence of that type of contractual relationship between the co-defendants may be extended by analogy to other legal cases in which the same contractual relationship exists and the legal framework is different from that analysed in the present case, provided that the claims are based on the same legal situation.