Hummel Holdings A/S ("Hummel"), a Danish company, has sued Nike Inc. and its Dutch subsidiary for infringement of its trade mark under Article 97(1) of the European Trade Mark Regulation before the German courts.
Nike Inc. has a German subsidiary, Nike Deutschland GmbH, which offers some pre-sale and post-sale support. Significantly, Nike Deutschland GmbH was not made a party to the proceedings by Hummel.
A query was sent to the Court of Justice of the European Union ("CJEU") as to whether the existence of Nike Deutschland GmbH – although not a party to proceedings – meant that Nike had a "place of establishment" in Germany, such that Hummel could make a valid election to sue Nike in Dusseldorf, Germany.
The CJEU agreed with Attorney General Tanchev that "place of establishment" should be interpreted widely, and thus Nike could be sued in Dusseldorf, even though the German subsidiary which constituted this "place of establishment" was not party to the proceedings.
This could potentially open up options for litigation forum shopping involving international companies.