The Territorial Discrepancy between Intellectual Property Rights Infringement Claims and Remedies

50 Pages Posted: 18 Dec 2018

See all articles by Marketa Trimble

Marketa Trimble

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: November 29, 2018

Abstract

When in Equustek v. Google a Canadian court ordered that Google de-list the pages of a defendant that infringed intellectual property (“IP”) rights under Canadian law, some commentators were surprised not only by the Canadian court’s assertion of personal jurisdiction over Google (a U.S. third party who was not a party to the original Canadian IP rights infringement litigation), but also by the court’s issuance of a remedy with global effects. However, global and other extraterritorial remedies are not unknown in IP rights infringement cases: U.S. courts have granted extraterritorial remedies in a number of such cases. This article reviews the various types of “extraterritorial remedies” – which the article defines as remedies that reach beyond the territorial scope of the underlying claim – and points out the problems caused by the resulting territorial discrepancy between the territorial scope of claims and the territorial scope of the remedies. The existing literature and international treaty negotiations have not focused on these remedies, which are typically discussed as part of the category of cross-border remedies. The article explores the phenomenon of the territorial discrepancy and considers the ways in which the problems generated by the territorial discrepancy might be addressed.

Keywords: Remedies, extraterritorial, territorial, intellectual property, scope, cross-border, injunctions, damages, internet, predicate act, WesternGeco, Equustek, Google, geoblocking, Hague Convention

Suggested Citation

Trimble, Marketa, The Territorial Discrepancy between Intellectual Property Rights Infringement Claims and Remedies (November 29, 2018). Lewis & Clark Law Review, Vol. 23, 2019; UNLV William S. Boyd School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3293416

Marketa Trimble (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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