THURSDAY, 9 OCTOBER 2008
Cost-free access to the The Hague District Court for (John) Deers in trade mark matter
In medieval times - and sometimes the times are still medieval - access to courts for foreign plaintiffs was only possible if a security for the costs of the proceedings was provided ('cautio judicatum solvi'). But a lot of states have entered into agreements, conventions and treaties to push this aside in mutual relationships. An example from the Dutch perspective is the Treaty of Friendship, Commerce and Navigation that the United States of America and the Netherlands signed on March 27, 1956. European examples can be derived from the EU Regulation on Jurisdiction and the Enforcement of Foreign Judgements and its equal in relationships with European Free Trade Assocation countries, the Lugano Convention.
In trade mark infringement proceedings on the merits between US based Deere and Company and Swiss based John Deere Internationl GmbH against Dutch based VR-Products the Distict Court of The Hague (Chr.A.J.F.M. Hensen) decided today that VR-Products was not entitled to demand a security from the Deere plaintiffs for costs of the proceedings and damages: 'The District Court puts first that pursuant to art. 224 par. 1 of the Dutch Code on Civil Procedure a plaintiff who is based in a foreign country is obliged to provide securety for the costs of the proceedings and for a compensation of damages on a claim by the defendant (the defendant needs to do this with an interim action, addition by me, Gino). However, art. 224 par. 2 of the Code provides that this obligation does not exist, if this follows from a Treaty or a EC regulation. According to its articles of association Deere is based in the United States of America. Consequently Deere is exempted from the obligation to provide security according to art. V of the Treaty of Friendship, Commerce and Navigation between the Kingdom of the Netherlands and the United States of America in conjunction with art. 5 of the Protocol to this Treaty. John Deere is based in Switzerland, thus she can not be imposed with a security in view of art. 45 of the Lugano Treaty. The interim action is therefore denied.'
The case concerns an alleged trade mark infringement by VR-Products on Deere and John Deere's community and benelux trade mark rights with numbers 000332874, 000394460, 000997866, 00430548, 000063289 (CTM) and 0041180, 0041179, 0041178, 0157420 and 0687212 (Benelux). The alleged infringement concerns apparently the parallel trade in mowers originating from non-EU countries.
A small remark to end this posting: although we have to live with international regulations that have crossed out the cautio, it might nevertheless be good to have a keen eye on a plaintiffs financial condition if the costs of the proceedings and damages are to be expected to be of such a level that there is a risk that the plaintiff is not able to a refund, for example if the plaintiff loses a case in appeal or a review at the Dutch Supreme Court. But the means to do this seem hard to find. Risky business therefore since the costs of the proceedings have gone way up due to the new costs regime in the Netherlands.
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