Study On Application Of Law Of Intellectual Property Right

Owing to the territorial character of intellectual property right, each country simply accepted cases concerning its own intellectual property rights without considering those concerning foreign countries' over a long period of time, and the result of this practice is that the law applied in the case was always domestic law and no foreign law was applicable. That is, according to the jurisdiction, the situation that domestic law and foreign law compete to be applicable in the same case would never appear, and hence the conflict of law wouldn't occur. However, with the development of the science and technology as well as the deepening of the international exchanges, the territorial character of intellectual property right has been broken through. Many countries have reformed the jurisdiction, stipulating that the court should accept the cases over intellectual property rights not only concerning its own country but also concerning foreign countries. Such a reform makes both domestic law and foreign law applicable in the same case, the conflict of law of intellectual property right occurs.There are two methods of resolving the conflict of law of intellectual property right, i.e. the uniform substantive rules and conflict rules. Both of them are of advantages and disadvantages, and both of them are necessary. Every country insists on the territorial character of intellectual property right in establishing the rules of application of law. In complicated cases of intellectual property right (i.e. cases involving two or more than two places of tort), choosing applicable law by traditional connecting factor is not enough, then the flexible methods such as the rule of autonomy of will and the theory of proximate connection must be used. In view of the above-mentioned facts, the break-through of the territorial character of intellectual property right is inevitable. It is quite necessary for all countries to strengthen their communication and cooperationmutually admitting the extraterritorial effect of intellectual property right within certain limits, admitting and executing the arbitration and sentences of the courts of their counterparts.The author analyzes our country's rules of application of law on the basis of the judicial practice in the field of intellectual property right, and proposes some suggestions on the establishment and perfection of our country's conflict rules of intellectual property right.