Intellectual property and employment law interact in various ways. In a cross-border context one asks the question which law will apply to the issues surrounding employee inventions or copyright works and trade marks that are created by employees. On the one hand there is a clear link with the IP right, making it plausible that the law that applies to the IP right as such also applies to the ownership issues that arise in an employment context. On the other hand there is the law that applies to the employment relationship. Ownership of IP rights that are created in an employment context is from that perspective an issue that is narrowly linked to the employment relationship and to which the same law could apply.
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 repeating 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.