| As evidenced by statistics from various Chinese courts of law, there have been an increasing number of cases involving intellectual property rights, and the role of international private law in resolving such disputes is a new topic in legal studies which remains to be explored. While concentrated research efforts regarding international intellectual property has been made from the various perspectives including international law and international commercial law, little has been done from the angle of international private law due to its inherent territorial constraints.Among the different components of intellectual property, the role of trademarks was traditionally regarded as been less important than that of patents and copyrights. Along with the integration of the global economy, consumers nowadays are more likely to make purchases in pursuit of a globally renowned brand name, and trademarks have thus become powerful tools for MNCs to successfully venture into emerging markets. This has in turn resulted in increasing number of legal disputes involving cross-border transfers of trademarks. Although issues relevant to international private law such as the place of jurisdiction, the applicability of local law and ownership of trademarks are ubiquitous in these disputes, they are often neglected. Among these cross-border disputes over trademarks, the IPAD case which has recently ended its appeal hearing has received great attention.Prior to2011,laws regarding the protection of foreign trademarks are only passively legislated to fulfill the requirements of WTO and such legislations are far from perfect. Procedures for resolving cross-border conflict of laws relating to intellectual property are not expressly specified in these legislations. Instead, they are only vaguely covered in the domestic Intellectual Property Law. It is not until April2011when China passed its People’s Republic of China on Application of Law in Civil Relations with Foreign Contacts did the world’s most populous nation have its first international private law legislation attempted at standardizing foreign-related civil relations. There is a separate component within this legislation relating to intellectual property right which has made specific provisions regarding the ownership of intellectual property, applicability of law governing intellectual-property-related contracts and the resolution of disputes over intellectual property infringements. Along with efforts from Taiwan, USA, Europe and Japan, mainland China’s move in protecting intellectual property rights through enactment of international private laws is part of the global initiative to defend intellectual property rights through legislations. Through the study of the IPAD trademark case, this paper seeks to analyze international private law issues relating to trademarks owned by MNCs, such as the ownership of trademarks, place of jurisdiction and wrong application of laws in commercial transactions involving foreign trademarks. Alongside latest legislations involving intellectual property and international private law, this paper also seeks to compare the differences in the applicability of law regarding foreign-related intellectual property between mainland China’s People’s Republic of China on Application of Law in Civil Relations with Foreign Contacts and Taiwan’s similar Law Governing the Application of Laws to Civil Matters Involving Foreign Elements passed in2010, and thereby providing suggestions towards the future development of the relevant legislations. |
