BREAKING: The Hague court asks questions to CJEU regarding jurisdiction in Benelux trademark disputes

The Benelux is not a Member State of the European Union,
 but it's  fully part of the  territory of the EU, so what courts 
would be designated  if the Brussels I regulation is used?
 [image copied from my update on the issue of January]

Last year I wrote a blogpost on an unintended consequence of the consolidation of two treaties (Benelux Trademark Law and Benelux Industrial Designs Law) into a single treaty: the 2005  Benelux Convention on Intellectual Property. While the jurisdiction provisions in the treaty were copy-pasted from the older treaties, the treaty itself was a new one. In the EU, jurisdiction is governed by the Brussels I regulation (44/2001 until 2015; now a recast is in place), which states that jurisdiction in treaties from before that regulation (here: the 2 old Benelux treaties) would take precedence over the Regulation. This does not hold however for later ("posterior") treaties.

The Benelux judges seem never to have realized this and always based their jurisdiction on Benelux law, until in November 2013 the Court of Appeal of The Hague argued that clearly now Brussels I should take precedence; a choice with unintended consequences as Brussels I has never been written with a "common IP right to several member states" (as is the case with the Benelux trademark and the Benelux design) [note that jurisdiction for the community trademark is excluded from Brussels I; and that for the unitary patent Brussels I was changed to reflect the situation of a court common to several member states; in this case we are talking about several courts in 3 countries that may or may not have jurisdiction]. The The Hague court concluded that the Brussels I regulation prevailed, and was sure enough not to deem questions to the Court of Justice of the European Union necessary.


In October 2014 however, the court of first instance of The Hague was faced with the same question and suggested questions to CJEU and possibly the Benelux Court of Justice. The case concerns Brite Strike, which markets itself [copied from my previous post for convencience] ("Two police officers started Brite-Strike Technologies Inc. because they were simply not satisfied with what the "top makers" of tactical lights offered for the needs of police officers") Technologies Inc (a US company) v Brite Strike Technologies SA (a Luxembourg company) (ECLI:NL:RBDHA:2014:13187). The matter concerns alleged bad faith in the registration of the Benelux trademark Brite Strike by the Luxembourg company, which was a distributor of the US company. Article 4.6(1) BCIP would render the Luxembourg judge exclusively competent, while article 22(4) of the Brussels I regulation points to the judges of the Benelux (at least, that is one interpretation).

We are half a year further, and ie-forum reports the questions have been finalized and sent to CJEU in Luxembourg (Case C-230/15). The Luxembourg defendant meanwhile is without legal representation in the case and has not reacted to any of the proposed questions.

The first three questions are very similar to the questions suggested in October, while the fourth one has been dropped. the questions (now available in their official translation) are below:

1) Must the Benelux Convention on Intellectual Property (Trademarks and Designs) (BCIP) (whether or not on the grounds set out in paragraphs 28 to 34 of the judgment of the Gerechtshof Den Haag (Regional Court of Appeal, The Hague) of 26 November 2013) be considered to be a subsequent convention, with the result that Article 4.6 of the BCIP cannot be considered to be a special rule for the purposes of Article 71 of Regulation No 44/2001 [The Brussels I regulation]? 

If that question is answered in the affirmative: 

2) Does it follow from Article 22(4) of Regulation No 44/2001 that the Belgian, Netherlands and Luxembourg courts all have international jurisdiction to take cognisance of the dispute? 

3) If not, how should it be determined, in a case such as the present, whether the Belgian, Netherlands or Luxembourg courts have international jurisdiction? Can Article 4.6 of the BCIP (nonetheless) be applied with a view to (further) determining international jurisdiction?

[copying in my evaluation of October again] It is hard to evaluate what the answers of ECJ and/or BCJ will be, but indeed, the questions posed seem indeed to be the relevant questions. If I had to give my best guess of the answers I'd say:
I: This is a clash between following the letter of Brussels I (rendering BCIP posterior) or the intent of the EU and Benelux legislator (rendering BCIP anterior and applicable). Most clarity will be given if the answer is in the negative: when Brussels I is to prevail, a regulation should be applied which was never written with the peculiarities of the Benelux territory in mind, which is bound to result in more questions. However, the ECJ is known to favour the literal interpretation of Brussels I for the sake of predictability, so I think the answer will be: YES
II: The second question is regarding Brussels I 22(4) and gives jurisdiction to the courts of the Member State in which the deposit or registration has been applied for (this can be: the Benelux, rendering all courts competent; or where the physical application took place: at the trademark office in The Hague, Netherlands, rendering always NL competent), has taken place (idem) or is under the terms of a Community instrument (not applicable?) or an international convention (BCIP) deemed (the convention explicitly excludes the location of registration as a determinant in jurisdiction, and would point to the Benelux courts in general) to have taken place. I would assume that because of the last part of the sentence, courts from all 3 countries are competent.
III: This may be the trickiest question... IF the Benelux is to be regarded a separate territory for the application of Brussels I, then the internal law of Benelux (BCIP?) should determine jurisdiction. However, if multiple courts have international jurisdiction (in this case NL, BE, LU) under Brussels
I, normally they all have jurisdiction, and the lis pendens doctrine will render the court first seized competent to hear the case. Again, I don't see much reason why ECJ would not take a literal meaning of 22(4), render all courts competent, and the location within Benelux dependent on the court first seized.

More information:
There is not much more available on this case on the web. It was mentioned by the IPKat blog, the Marques blog and IPCuria; and the Dutch government has published some additional information (as they do with all CJEU cases) in Dutch.
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This post was last updated on 8 September to include the formal translation of the questions and an update of available information on the web.