Research Handbooks in Intellectual Property series
Edited by Paul Torremans
Chapter 1: Cross-border enforcement of intellectual property rights in U.S. law
The cross-border enforcement of intellectual property law covers a broad range of topics that include issues of jurisdiction, conflict of law, and the enforcement of foreign judgments to name a few. It would take a book length chapter to do justice to this important and varied subject, often given short shrift in treatises on intellectual property law. In this chapter I have tried to emphasize the major areas of concern but have not exhausted all the diverse circumstances where cross-border issues come into play. I have done so in the following four broad contexts: the extraterritorial application of U.S. law, the gray market, choice of forum and choice of law, and the enforcement of foreign judgments. To provide an overall assessment regarding the cross-border enforcement of intellectual property law in the U.S. is a difficult proposition because of the breadth of the subject matter. One can generalize that in a digital networked environment and a global marketplace intellectual property rights (IPR) can no longer be viewed in a strictly territorial framework. In this regard, U.S. courts have progressively expanded the scope of U.S. law across national borders with less restraint than in the past. This decline of strict territoriality has occurred increasingly over many decades. One gets the impression that some kind of tipping point has taken place and we are challenging notions of strict territoriality as never before.