AG Tanchev delivered today his opinion in case C‑617/15 (Hummel Holding A/S v Nike Inc., Nike Retail BV), which is about Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. Article 97(1) of this Regulation provides that infringement proceedings in Community trade mark matters “shall be brought in the courts of the Member State in which the defendant is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment”.
The opinion: “a legally distinct second-tier subsidiary, with its seat in an EU Member State, of an undertaking that itself has no seat in the European Union is to be considered an ‘establishment’ of that undertaking within the meaning of Article 97(1) of [Regulation on the Community trade mark] if that legally distinct second-tier subsidiary is a centre of operations which, in the Member State where it is situated, has the appearance of permanency, such as an extension of the third State parent body”.
An interesting passage (comparison with Brussels I):
“48. Both, Articles 5(5) and 18(2) of Brussels I allow the plaintiff to sue a defendant at a place which is not his domicile, but at which he has an establishment.
49. Nevertheless, both of these provisions require, beyond the mere existence of an establishment, that the dispute arose ‘out of the operations of that establishment’. Thus, under these norms, the establishment by itself is not sufficient to constitute the link to the forum State, but an additional element is needed. The second of the two criteria, which have been developed in the Brussels I case-law described above, refers exclusively to that additional element.
50. However, the text of Article 97(1) CTMR does not contain this second element, but rather contents itself with giving jurisdiction to the Member State in which the defendant has an establishment. Therefore, the second criterion of the Court’s two-pronged test as to Articles 5 and 18 of Brussels I can be ignored in the present context”.