Thursday 20 November 2008

ECJ hearing on royalty payment reference

There was a hearing today before the Court of Justice of the European Communities in Case C-533/07, Falco Privatstiftung and Thomas Rabitsch v Gisela Weller-Lindhorst, a reference for a preliminary ruling lodged just over a year ago by the Oberster Gerichtshof (Austria). The questions referred are as follows:

"1. Is a contract under which the owner of an incorporeal right grants the other contracting party the right to use that right (a licence agreement) a contract regarding 'the provision of services' within the meaning of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation, OJ 2001 L 12, p. 1.)?

2. If Question 1 is answered in the affirmative:

2.1. Is the service provided at each place in a Member State where use of the right is allowed under the contract and also actually occurs?

2.2. Or is the service provided where the licensor is domiciled or, as the case may be, at the place of the licensor's central administration?

2.3. If Question 2.1 or Question 2.2 is answered in the affirmative, does the court which thereby has jurisdiction also have the power to rule on royalties which result from use of the right in another Member State or in a third country?

3. If Question 1 or Questions 2.1 and 2.2 are answered in the negative: Is jurisdiction as regards payment of royalties under Article 5(1)(a) and (c) of the Brussels I Regulation still to be determined in accordance with the principles which result from the case-law of the Court of Justice on Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the Brussels Convention)?"

Does any reader know what this dispute is actually about? It's rare for cases involving IP licences to reach the upper echelons of European jurisprudence unless they concern market division, abuse of dominant position or some other competition-related issue. But this case looks as though it's about something to do with a licensor suing for his royalties and finding that jurisdictional/enforcement problems are barring his path. Any information, particularly from this blog's Austrian readers, would be welcome.

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