Intelektinė nuosavybė ir tarptautinė privatinė teisė: iššūkiai ateinančiam dešimtmečiui (Intellectual Property and Private International Law: Challenges for the Forthcoming Decade)
Justitia, No. 75, p. 28, 2011
Justitia, No. 74, p. 23, 2010
42 Pages Posted: 13 Jan 2011 Last revised: 28 Jun 2013
Date Written: December 25, 2010
Abstract
Private international law issues concerning intellectual property rights have become subject of vivid discussions both among practitioners and academics. This article provides for a comparative legal analysis of how cross-border intellectual property disputes are adjudicated in 20 major jurisdictions (US, Canada, selected European countries, Japan, Korea, India, and Taiwan). The first part of the focuses in particular on various issues concerning international jurisdiction over cross-border intellectual property disputes (general venue, infringement jurisdiction, exclusive/subject-matter jurisdiction, possibilities of consolidation, parallel proceedings, jurisdiction to grant provisional measures as well as choice of court agreements).
The analysis of the court practice of different states highlighted inefficiencies related to adjudication of cross-border intellectual property disputes. Namely, the overview of landmark decisions rendered by the courts of different states highlighted the fact that in many cases IP disputes can be adjudicated only before the courts of the protecting states. This is the result of the principle of territoriality of IP rights. Hence, in practice, the proprietor of parallel IP rights must initiate proceedings before the courts of every state where the protection is sought. Such situation is neither effective nor desirable. Being aware of the difficulties which may be faced trying to establish a more flexible cross-border IP dispute settlement regime, the authors of this paper provide a brief overview of the legislative proposals (the ALI Principles, the CLIP Principles, the Transparency Proposal and the Korean Proposal). Meanwhile, if any legislative initiatives to draft an international instrument are to be revived, it is proposed, that one of the possible starting points could be the 1999/2001 Drafts of the Hague Judgments Convention.
Note: Downloadable document is in Lithuanian.
Keywords: Intellectual property, private international law, jurisdiction, choice of law, lex loci protectionis, country of protection, ALI Principles, CLIP Principles, Transparency Principles (Japan)
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