The New World has been a target for centuries. Before, it used to be a more elusive place, a tricky destination. For example, to reach it, it took a month’s voyage across the ocean in a wooden vessel was required. Nowadays, the New World surrounds us. It is the World Wide Web. It is indisputable that the Internet is driving the ongoing revolution in how we perceive the world and the manner in which it impacts our society in every possible way. That is also true for the courts of law. Now under implementation, in Poland, is a project related to audio or audio-video digital recording of court hearings, which is certainly a huge sign of progress. But it is certainly not big enough to keep pace with, or leap ahead of the ongoing changes and the problems these changes will bring about. There are many dilemmas already, and more are likely to surface.
Can pleadings be effectively served via e-mail? On Facebook? To an avatar? Can a witness be examined through Skype or Viber? Could an administrator of an external cloud be effectively ordered by the court, as a third party, to produce the electronic data it keeps for a party of court proceedings? By who and how should the accuracy (integrity) of e-files produced as evidence be certified? And so on.
The courts have only just begun to struggle with the volume and perplexity of these problems, as well as their incompatibility with the classic institutions of a court trial, which was designed for and adjusted to the needs of the predigital world. A single example of how the Internet may affect the international civil procedure can be found in the recent judgment of the Court of Justice of the EU in case C-523/10 Wintersteiger.¹ The ruling was rendered within the framework of the ‘classic’ preliminary reference procedure, in relation to the question for interpretation of Art. 5(3) of the Brussels I Regulation². The provision in question is, in a sense, also an old-timer having its origin in the 1968 Brussels Convention. It provides that, as an exception to the general rule laid down in Art. 2 of the Brussels I Regulation (which mandates that defendants are sued before the courts in the Member States of their residence or seat), in matters relating to tort, delict or quasi-delict, the defendant may also be sued in the courts for the place where the harmful event occurred or may occur. This principle was developed in a number of ECJ decisions (including in the renowned Mines de potasse d’Alsace judgment from 1976³), to mean that the notion of the ‘place where the harmful event occurred or may occur’ is intended to cover both (i) the place where the damage occurred and (ii) the place of the event giving rise to it.
The Wintersteiger case transfers this framework into the world of digitalized content. It concerns a claim brought by a renowned producer of ski and snowboard servicing tools, as well as replacement parts and accessories, for alleged violation of its Wintersteiger trademark, which has been registered in Austria. Wintersteiger alleged that its trademark was violated by the German company, Products 4U, which also develops and sells ski and snowboard servicing tools. Products 4U also sells accessories for i.a. Wintersteiger tools. The allegation of infringement was based on the fact that Products 4U has reserved the keyword (‘AdWord’) ‘Wintersteiger’ in the advertising system developed by Google. As a consequence, an Internet user who enters the keyword ‘Wintersteiger’ into the google.de search engine, receives a link to Wintersteiger’s website as the first search result. At the same time, however, an advertisement for Products 4U would appear on the right-hand side of the screen with the heading ‘Anzeige’ (‘advertisement’), which would indirectly lead the internet user to the ‘Wintersteiger-Zubehör’ (‘Wintersteiger accessories’) offer on the Products 4U’s website. The advertisement on google.de does not indicate in any way the absence of economic links between Wintersteiger and Products 4U.
The question, which the ECJ had to decide at this stage of the dispute, was limited to the issue of the courts of which Member States should be competent to hear such a claim. The Court of Justice held – and rightfully so – that under the notion of “the place where the damage occurred”, in cases related to an infringement of a trade mark registered in a Member State through the use, by an advertiser, of a keyword identical to that trade mark on a search engine website operating under a country-specific top-level domain of another Member State, the competence to hear the case lies with the courts of the Member State in which the trade mark is registered. It is, moreover, a coherent development of an earlier line of the Court’s decision.4
With respect to the place where the event occurred that gave rise to the alleged violation of the trademark, the Tribunal indicated that decisive weight should be placed not on the place of the technical display of the advertisement, but on the activation by the advertiser of the technical process displaying, according to pre-defined parameters, the advertisement which it created for its own commercial communications. At the same time, the Tribunal refused to give legal weight (for purposes of Art. 5(3) of the Brussels I Regulation), to the place of establishment of the server on which the technical display process is activating, as it decided that there is no sufficient link between such a location – to a large extent fortuitous – and the jurisdiction of courts in a given Member State. The Court instead attached conclusive importance to the place of establishment of the advertiser, based on the – certainly simplified and generalized – presumption that it is the place, where the decision to start the display process is activated.
A a short conclusion for this decision is that none of the connecting factors accepted by the Court as constituting jurisdiction (place of trademark registration and place of establishment) belongs to the digital world. Both these factors are, however, objectively reasonable reference points, which make it possible to competently resolve “digital” disputes.
¹ Judgement of 19 April 2012 in the case C‑523/10 Wintersteiger AG v. Products 4U Sondermaschinenbau GmbH, (non publ.). The Rapporteur of the Court was the Polish judge Prof. Marek Safjan.
² Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).
³ Judgement of 30 November1976 in case 26/76 Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA., ECR 1976 Page 01735. Incidentally, the judgment was issued, in an environmental damages case, still relevant today.
4 Judgement of 23 March 2010 in joint cases C‑236-238/08 Google France and Google,  ECR I‑2417; judgement of 12 July 2011 in the case C‑324/09 L’Oréal et al. (non publ.).