You are here
News
The Germany based defendant had booked the Austrian plaintiff's trade mark as one of the keywords for the defendant's ad at "google.de". When the plaintiff filed a law suit before an Austrian court, the defendant asked to dismiss the claim for lack of jurisdiction: the website „google.de“ was exclusively directed to German users and thus the ad had only aimed at potential customers in Germany. Upon reference for preliminary ruling lodged by the Austrian Civil Supreme Court (OGH), the CJEU in its judgement of 19.04.2012 (C-523/10 - Wintersteiger/Products 4U), held that Article 5 Nr. 3 of the Brussels I-Regulation has to be interpreted as giving the plaintiff the choice to file the claim either before the courts of the member state where the trade mark is registered or before the courts of the member state where the advertiser's business is located. This is of importance because the OGH (17 Ob 3/10f - Bergspechte III) applies stricter standards in assessing the admissibilty of the use of trade marks in keyword advertsing than the German BGH (I ZR 125/07 - Banana Bay II).
The plaintiff had booked a holiday package and spent her vacations in Gran Canaria in April 2010. Her return flight scheduled for April 17, 2010 had been cancelled because of the air space closures caused by the 'ash cloud'. Thus she had to stay in Gran Canaria until April 23, 2010 and bear the extra costs of this extend stay (mainly: hotel and telephone costs). Back home she sued the tour organiser for compensation. The appelate court (LG Innsbruck), however, dismissed the claim against the tour organiser. Other than th first instance court, the appelate court followed the arguments of the tour orgnaiser and held that pursuant to Reg. 261/2004/EC it had been the operating carrier's responsibility to provide free hotel accomodation and telephone calls. Any action for compensation with regard to a failure to comply with these obligations could therefore only be brought against the operating carrier while the tour organiser had had no obligation to provide these services and had not been at fault with regard to the cancellation.
LG Innsbruck 6.12.2011, 1 R 158/11h (Tour organiser represented by Michael Wukoschitz)
In a judgement of Oct. 25, 2011, the ECJ has held that victims of infringements of personality rights by means of the internet may bring actions before the courts of the Member State in which they reside in respect of all of the damage caused. However, the operator of an internet website covered by the e-commerce directive cannot be made subject, in that State, to stricter requirements than those provided for by the law of the Member State in which it is established. (Joined Cases C-509/09 - eDate Advertising GmbH v X and C-161/10 Olivier Martinez and Robert Martinez v MGN Limited)
Published by NWV-Verlag (editor: Gerhard Saria), the "Yearbook Tourism Law 11" is now available. It highlights the developments in travel and tourism law within the period of summer 2010 till summer 2011 and contains the following articles (all in German language):
- "European and International Developmments in Travel Law" - Michael Wukoschitz
- "Package Travel under Czech Law" - Markéta Selucká/Eva Dobrovolná
- "Public Tourism Law - Case Law and Regulation of Outdoor Restaurant Areas" - Matthias Köhler
- "Current Issues in Leisure Law from a Practical Perspective" - Wolfgang Köhler
- "Recent Case Law of Commerical Court Vienna in Travel Law Matters" - Alexander Schmidt
- "The Hotel as Package Organiser - From Bed and Breakfast to Compensation for Loss of Holiday Enjoyment" - Eike Lindinger/Gernot Liska
- "Commercial Law Developments in Travel Law" - Gerhard Saria
- "Travel Services in VAT-Law" - Veronika Seitweger
For further information look here>>.
The plaintiff (a lawyer) initially had sued a tour operator for mal-performance of a package travel contract. The claim had been dismissed by all instances as courts had held that the plaintiff had booked accomodation in a Dubai city hotel with half board and a shuttle service to the beach - and had exactly got what he had booked. It had to be regarded obvious that a city hotel could not offer the same amenities with regard to duration and flexibility of staying at the beach like a hotel directly situated there. It also could not be regarded a mal-perfomance that beach hotels might be more adapted to European tourists with regard to choice and seasoning of dishes.
The Civil Supreme Court (OGH) had dismissed the plaintiff's appeal because of a lack of material legal issues involved. The decisions of the lower courts at least had to be regarded reasonable. The hotel description provided by the tour organiser had not been misleading and - given the short-term booking by the plaintiff - he could not have expected further information. The Supreme Court therefore had seen no reason for a preliminary ruling by the ECJ as suggested within the statement of appeal.
With another law suit before the constitutional court, the plaintiff then sought for state liability of Austria on the ground that the Civil Supreme Court had neglected ECJ jurisprudence and failed to move for a preliminary judgment by the ECJ which would have been in favour of the plaintiff. It would be inconceivable and against the purposes of the Package Travel Directive if the consumer had to accept a useless package.
However, this new suit also remained unsuccessful: the Constitutional Court (VfGH) dismissed the claim because the plaintiff had failed to explain why the alledged false application of the Package Travel Directive should have been obvious. As the statement of claim had not even suggested any obvious and thus qualified violation of EU law, there was no sufficient foundation for state liability.
German text of judgement A 4/10 of the Austrian Constitutional Court (VfGH) of May 2, 2011 available here>>.
Pages
