European Court of Justice: „Nintendo-BigBen“ - Infringement of a community design an international jurisdiction

BigBen France manufactures fittings which are compatible with a video game console of Nintendo, and delivers them it to customers in France, Belgium or Luxembourg. Nintendo´s video game console is protected by a community design. A BigBen advertisement depicted Nintendo´s video console. The European Court of Justice, upon referral by the Higher Regional Court Düsseldorf, held on September 27, 2016 (C-25/16): It is permissible to display a community design of a third party to point to the compatibility of fittings if this corresponds to the honest course of business, does not hamper the usual use of the community design unreasonably, and the origin of the product is clearly shown. Moreover, a national court enjoys international jurisdiction to issue decisions with regard to activities for the entire European Union. The law of that state in which the infringement was committed is applicable. To determine where infringement occured, not any single infringement activity but rather the entire infringement situation was to be considered in order to determine the place where the primary infringing activity took place.

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