Chapter 5: Lex Loci Protectionis and the Territoriality Principle
ALI Principles § 301. Territoriality Except as provided in §§ 302 and 321–323, (1) The law applicable to determine the existence, validity, duration, attributes, and infringement of intellectual property rights and the remedies for their infringement is: (a) for registered rights, the law of each State of registration. (b) for other intellectual property rights, the law of each State for which protection is sought. (2) . . . Draft CLIP Proposal Article 3:102: Lex protectionis The law applicable to existence, validity, registration, scope and duration of an intellectual property right and all other matters concerning the right as such is the law of the State for which protection is sought. Article 3:601: Basic Principle (1) Unless otherwise provided in this Section [Infringements and Remedies], the law applicable to the infringement is the law of each State for which protection is sought. Article 3:701: Limitations and exceptions, waivability (1) Limitations and exceptions are governed by the law of the State for which protection is sought. (2) The waivability of limitations of, and exceptions to, an intellectual property right shall be determined by the law of the State for which protection is sought. This chapter, and the following ones, will provide an overview of the rule and its origin (A), analyse the main features of the rule (B), evaluate the rule and identify problems with it (C), and suggest some proposals for further consideration (D). A. RULE AND ITS ORIGIN As a general rule, both the ALI Principles and draft CLIP Proposal provide...
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