Elgar Commentaries series
Edited by Irini A. Stamatoudi and Paul Torremans
Chapter 18: INTELLECTUAL PROPERTY AND THE EU RULES ON PRIVATE INTERNATIONAL LAW: MATCH OR MISMATCH?
This chapter is slightly peculiar in nature in the sense that it does not offer a commentary of a single instrument. There is after all, as yet, no single instrument that deals with the private international law aspects of intellectual property (IP) rights at EU level. What is to follow is therefore a 'tour d'horizon' of the topic and an answer to the question how the existing private international law instruments apply to IP. Rather than to repeat the exhaustive analysis that has been offered on other occasions, we will focus on provisions and points that create difficulties and we will offer suggestions for a way forward. In Section II we will look at issues of jurisdiction and in Section III we will turn to issues of choice of law. Jurisdiction is in this area governed by the Brussels I Regulation. The rules of that Regulation apply to intellectual property and that results e.g. in a standard rule that the defendant can always be sued in the courts of the country where he or she is domiciled. That rule does not create particular difficulties for IP cases and neither does the alternative rule for contractual issues which is found in Article 7(1). When it comes to infringement of IP rights the tort rule in Article 7(2) gives the claimant another alternative. The concept of the place where the harmful event occurred or may occur does cause some problems of interpretation though in an intellectual property context.
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