Research Handbook on Cross-border Enforcement of Intellectual Property
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Research Handbook on Cross-border Enforcement of Intellectual Property

  • Research Handbooks in Intellectual Property series

Edited by Paul Torremans

The Research Handbook on Cross-border Enforcement of Intellectual Property systematically analyses the unique difficulties posed by cross-border intellectual property disputes in the modern world. The contributions to this book focus on the enforcement of intellectual property primarily from a cross-border perspective. Infringement remains a problematic issue for emerging economies and so the book assesses some of the enforcement structures in a selection of these countries, as well as cross-border enforcement from a private international law perspective. Finally, the book offers a unique insight into the roles played by judges and arbitrators involved in cross-border intellectual property dispute resolution.
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Chapter 13: Cross-border injunctions

Paul Torremans

Extract

Cross-border injunctions are no doubt a useful tool in the enforcement of intellectual property rights. One needs to distinguish however between final cross-border injunctions and interim cross-border injunctions. The former are markedly easier to deal with than the latter, which also raise delicate issues of national procedural law. In both cases jurisdiction rules will play a dominant role. When it comes to final cross-border injunctions the starting point is found in article 44 of the TRIPS Agreement and in article 11 of the Enforcement Directive. Injunctions must be available as a remedy in the context of the enforcement of intellectual property rights. These provisions themselves remain silent on the potential cross-border nature of any such final injunction. When it comes to interim cross-border injunctions the starting point is found in article 50 of the TRIPS Agreement and in article 9 of the Enforcement Directive. Interim injunctions must be available as a remedy in the context of the enforcement of intellectual property rights. That much is clear, but once again these provisions themselves remain silent on the potential cross-border nature of any such interim injunction. A final injunction is the remedy that is awarded to the claimant as the outcome of a successful case. The remedy therefore corresponds, or if one wants to put it that way, sits on top of, the successful claim and the jurisdiction of the court to hear the case. There is a strict correlation between case, claim and remedy.

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