Research Handbooks in European Law series
Edited by Peter Stone and Youseph Farah
Chapter 5: Does size matter? A comparative study of jurisdictional rules applicable to domestic and Community intellectual property rights
Interactions between the nature of an intellectual property (IP) right and conflict-of-laws rules are well known. Thus, Article 24 of the revised version of the Brussels I Regulation, which provides for an exclusive jurisdiction in respect of IP, covers only registered rights, and thus distinguishes between jurisdictional rules for copyright and for industrial property rights. Moreover, national legal systems carve out some derogation to the lex loci protectionis in favour of the lex loci originis. Despite some notable exceptions, those partial applications of the lex loci originis exist mainly in copyright law. Here again, the registration requirement may explain that industrial property rights are governed by a more territorial system than copyright. The substantial nature of domestic IP rights entails different conflict-of-laws rules. Today, disparities among IP rights pertain not only to the objects protected but also to their scope of protection. Beside national IP rights, European Union (EU) law has created Community IP rights, overcoming a national territoriality in favour of a European territoriality. The scope of protection given is no longer limited to national boundaries but extends to the entire territory of the EU. In this field, the first European achievement was the Community trade mark, followed by the Community plant variety right and the Community design. The shift was bold! In order to obtain IP protection covering all EU Member States, one right suffices, and this gives rise to a huge saving of time and money.
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