The Competence of Greek Courts in Adjudicating Online Violations of Intellectual Property Rights: From Initial Damage to the Targeting Criterion

In international tort disputes, jurisdiction is often determined by the location of the initial damage. This principle is fundamental in both Greek law and EU regulations. This article examines when Greek courts are competent to adjudicate online violations of intellectual property (IP) rights, emphasising a shift from the location of initial damage to the targeting criterion, which may involve multiple jurisdictions.

The jurisdiction of Greek courts in tort disputes is governed by the Greek Code of Civil Procedure (GrCCP) and EU regulations such as Regulation (EU) 1215/2012 (Brussels I Recast). Decision No 1659/2022 of the Greek Supreme Court interprets these frameworks, emphasising the principles underlying jurisdiction in tort cases. Article 3(1) of the GrCCP states that Greek courts have jurisdiction over Greeks and foreigners if a Greek court has competence (Article 3(1) of the GrCCP). Article 4 mandates that courts investigate jurisdiction issues ex officio, ensuring jurisdiction only when there is a legitimate connection to Greece (Decision No 462/2021).

Article 35 of the GrCCP allows tort cases to be brought before the court of the place where the harmful event occurred or is likely to occur. This was amended by Article 5(1) of Law 3994/2011 to recognise that courts in the place of the tort are often the most appropriate due to their proximity to the event and evidence (Article 5(1) of Law 3994/2011).

Regulation (EU) 1215/2012 establishes general jurisdiction rules within the EU. Article 4(1) states that persons domiciled in a member state must be sued in the courts of that member state. Article 7(2) provides that, in tort matters, a person domiciled in a member state may be sued in the courts where the harmful event occurred or is likely to occur, ensuring a strong connection between the dispute and the forum.

Regulation (EU) 1215/2012 and the Lugano Convention define “damage” as harm caused directly by the defendant's unlawful conduct, excluding indirect damages. The “place where the damage occurred” is where the claimant experienced the initial harm. Subsequent damages in other locations do not establish international jurisdiction for courts in those places. In Decision No 1659/2022, the Greek Supreme Court affirmed that Greek courts have jurisdiction over disputes substantively connected to Greece based on territorial competence (Article 3 of the GrCCP).

The Court of Justice of the European Union (CJEU) emphasises the significance of the place of initial damage in determining jurisdiction. In Tibor-Trans (C-451/18, EU:C:2019:635), the CJEU specified that jurisdiction lies where the initial harm occurred, facilitating effective resolution due to proximity to evidence and witnesses. In flyLAL-Lithuanian Airlines (C 27/17, EU:C:2018:533), the Court ruled that indirect consequences cannot determine jurisdiction, underscoring that initial damage is crucial for jurisdictional purposes. Similarly, in Dumez France and Tracoba (C 220/88, EU:C:1990:8), the Court held that indirect consequences cannot establish jurisdiction, underscoring that initial damage is crucial for jurisdictional purposes.

Determining judicial competence in cross-border IP rights infringement cases is challenging. Courts have adopted three main criteria:

The targeting criterion has gained traction, evaluating whether a defendant's actions are directed towards a specific territory. The CJEU uses targeting to localise infringements of copyrights, database rights, trade marks and, implicitly, designs.

The CJEU's decision in Nintendo (C-24/16 and C-25/16) interpreted the “country in which the act of infringement was committed” as the place where the infringing design was first placed online. However, the CJEU generally favours the targeting approach, assessing whether advertisements and sales targeted EU consumers under the EU Trade Mark Regulation (EUTMR). Targeting was applied in cases like Football Dataco (C-173/11) for database rights and Donner (C-5/11) for distribution rights under the InfoSoc Directive.

Evidence of targeting includes the language used on websites, advertising content and co-operation with local delivery services. The Digital Services Act specifies factors like language or currency common in the EU, product ordering capabilities and relevant top-level domains. Mere technical accessibility from the EU is insufficient for establishing a substantial connection.

In EU law, localising IP rights infringement is a jurisdictional criterion. Article 7(2) of the Brussels I Recast Regulation allows jurisdiction where damage occurs. The CJEU prefers targeting to prevent giving jurisdiction to courts in member states where the infringer has not acted. In Hejduk (C-441/13), the CJEU held that the event giving rise to damage occurs where the infringing content decision was made, usually at the defendant’s place of establishment. This aligns with Wintersteiger (C-523/10), suggesting the causal event location is where the defendant is established. However, this approach may encourage relocation to lenient jurisdictions.

Adopting a targeting approach under Article 7(2) of Brussels I Recast is seen as more appropriate. In AMS Neve (C-172/18), jurisdiction was established in the member state where targeted consumers are located. Lännen MCE (C-104/22) clarified that targeting does not require the explicit availability of goods or services in the forum state but can be inferred from connecting factors like local language use and international activity.

Greek courts have jurisdiction over online IP rights violations when infringing activities are directed towards or have substantial connections to Greece. This aligns with national law and EU regulations, particularly the Greek Code of Civil Procedure and the Brussels I Recast Regulation. Greek courts are competent if the initial damage occurred in Greece or if the targeting criterion is met. The targeting criterion assesses whether the defendant’s actions were directed at the Greek market, considering factors like the use of Greek language or currency, targeted advertising or local customer service availability. This approach ensures consistency with CJEU jurisprudence, emphasising both the location of initial damage and the targeted nature of infringing activities, thus providing a fair and effective forum for resolving online IP rights disputes affecting the Greek market.