CASELEX:EU:2009:109 – IP Law – The concept ‘provision of services’ – Contract assigning intellectual property rights.

This reference for a preliminary ruling was made by the Oberster Gerichtshof (Supreme Court) (Austria) in proceedings between the applicants, Falco Privatstiftung, a foundation established in Vienna (Austria), and Mr Thomas Rabitsch, residing in Vienna (Austria), on the one hand and the defendant, Ms Gisela Weller-Lindhorst, domiciled in Munich (Germany), on the other hand, concerning, first, the performance of a contract pursuant to which the applicants in the main proceedings have licensed the defendant in the main proceedings to market, in Austria, Germany and Switzerland, video recordings of a concert and, second, the marketing, without any contractual basis, of audio recordings of the same concert.

It is apparent from the order for reference that the applicants in the main proceedings request payment of royalties, calculated by reference to the, partially known, amount of sales of video recordings of a concert. They also request that the defendant in the main proceeding be ordered to provide an account of all sales of video and audio recordings and to pay the resulting supplementary royalties. In support of their claims, the applicants in the main proceedings rely on, with regard to the video recordings, the provisions of the contract between them and their contractual partner and, with regard to the sales of audio recordings, a copyright infringement, there being no contractual basis in that regard.

At first instance, the Handelsgericht Wien (Commercial Court, Vienna), before which the applicants in the main proceedings brought the matter, held that it had jurisdiction to rule on those claims, pursuant to Article 5(3) of Regulation No 44/2001. It considered that, in view of the close link between the rights relied on, its jurisdiction also covered the fees owed for the video recordings pursuant to the contract at issue, a finding which was challenged by the defendant in the main proceedings.