OSCAR: Trade Mark Act, Sec. 14(2); Code of Civil Procedure, Sec. 253(2); European Jurisdiction and Enforcement Regulation, Art. 5 No. 3; Satellite and Cable Directive 93/83/EEC Art. 1(2)

In the relationship to protection against confusion, the assertion of an identical infringement of the trade mark within the meaning of Sec. 14(2)(1) of the Trade Mark Act constitutes the same subject-matter at dispute. If claims are asserted under an intellectual property right based both on protection against confusion pursuant to Sec. 14(2)(2) and on the grounds of protection of reputation pursuant to Sec. 14(2)(3) of the Trade Mark Act, these are likewise a single subject-matter at dispute [citation omitted]. Whether an infringement of relevance under trade mark law has taken place in Germany depends on whether the material has a sufficient commercial effect in Germany. For this, an overall balance must be made, taking account on the one side of the extent of the effects of the use of the sign on the sign holder’s domestic commercial interests. On the other side, the decisive factor is whether and to what extent the infringement of the right constitutes an unavoidable side-effect of technical or organisational aspects on which the party against whom the claim has been brought has no influence, or whether the latter – for instance by creating the possibility of orders being placed from Germany or by making deliveries to Germany – deliberately profits from accessibility in Germany [citation omitted].