Research Handbooks in Intellectual Property series
Edited by Paul Torremans
Chapter 9: Choice of law in IP: Rounding off territoriality
From their inception, the different intellectual property rights (IPRs) have progressively enlarged their geographical sphere of action. Nowadays, international communications between creators and users are facilitated and the very creative processes can take place in trans-boundary scenarios. In this context, Private International Law (PIL) has gained relevance for an effective enforcement of the distinct IPRs, whose defense can be pursued in issues related to the right as such (existence and ownership), to their infringement or to their presence in contractual relationships. Notwithstanding eventually differentiated analysis, the oscillating intellectual property concept is approached holistically in PIL. Once the jurisdiction issue is resolved, courts (jurisdictional or arbitral) need to establish the law that will apply to the particular IPR dispute. Choice of law is intrinsically linked to the jurisdiction since courts use their own (forum) conflict of law rules. Without forgetting the margin left for forum substantive law, these rules can lead to the application of one or more foreign laws. Therefore, in facing the jurisdiction issue it is advisable to make a prospective analysis of the choice of law rules that would be applied by a particular court. The increasing trend to allow the consolidation of multistate infringement claims before a single court reinforces the practical importance of the applicable law issue. A number of international conventions introduced substantive harmonization of IPRs and certain regional integration processes – like the European Union (EU) – have harmonized national laws and created unitary IPRs.
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