Following the recent blogs of last Thursday and Friday on jurisdictional issues involving the Community trade mark, Kathrin Vowinckel (from the London office of Kilpatrick Stockton), adds this contribution to the debate:
"Further to Phillip Johnson's first clarification below, in the Home Depot decision, the Court actually dealt with the question of the parties agreeing the applicable law. Primarily, and as discussed, the Court applied Art. 98(2) CTMR in connection with paras 19, 14(6) German Trade Marks Act, para.242 German Civil Code.The IPKat thanks Kathrin for her addition to the debate.
However, the Court offered an alternative explanation for parties not agreeing with this approach. The Court explained that the parties had, by implication, chosen German law. The claimants had based their claims (for damages, etc.) only on German law, and the defendants had not questioned this choice of law at any time during the course of the first instance proceedings. The Court explained that it is accepted that under Art.42 EGBGB (German private international law) the consistent application of German law in court proceedings can be considered an agreement by the parties of the applicable law - at least as concerns claims following from trade mark infringement and based on the CTMR (which aims to have uniform effect)".