Exploration And Analysis On The Issues Of Foreign IP Law Application

With regard to IP international protection, conflict regulations of IP, as anecessary rule, is material meaningful to the law conflicts in connection with IP.When the uniform legislation of IP international protection progresses, differentneeds of IP protection from different countries cannot be reconciled as usual.Therefore, the conflict regulations relating to IP industry will play important roles.This paper, standing from the perspective of chapter7of Law on Application of Lawin Foreign-related Civil Relations, analyzes the fundamental theories of foreign IPlaw application, discusses its practical application and provides several suggestionson perfecting the regulations of foreign IP law application.The paper contains three parts as follows.The first part introduces the intimate relationship of the following two: thecauses of foreign IP laws which include the establishment of national treatment,execution of international treaties, extension of jurisdiction of each countries’ courtsand etc.; and regionalism which is the inherent characteristic of IP. Essentiallyspeaking, both regionalism of foreign IP and study on conflict of law relationshipherein intend to protect foreign IP and they strike a balance. Moreover, the weaknessof international treaties in protecting foreign IP makes certain of development of lawapplication of foreign IP. The second part starts with a case in relation with law application of foreign IPas a point of penetration and introduces the basic theories of foreign IP, including theprinciple of places where protection is claimed, principle of party autonomy,principle of genuine link, principle of law of the forum, principle of origin of right,principle of tort law. Then in accordance with the theoretical controversy on “issueof Ontology” of foreign IP, contractual relationship of foreign IP and tort of foreignIP and the comparison of legislation in different countries, the paper provides somerelevant suggestions in the law application of foreign IP in cases.The third part, based on the stipulation of Law on Application of Law inForeign-related Civil Relations, analyzes the pros and cons of application of lawrelating to foreign IP in PRC and proposes ideas as follows that the judges may havecertain discretion on explaining the extent of application of IP right itself during thecourse of law application; IP’s origin, content and effect shall be further classified;due to specialty of IP derived from duty behavior, the application of aforesaidforeign IP shall not be decided in accordance with common law application of IPitself, instead shall be guided in accordance with its characteristic in a separate ruleof law. At last, the paper discusses flaws on selecting the connections in lawapplication of foreign IP in Law on Application of Law in Foreign-related CivilRelations and proposes a legal definition of places where protection is claimed beclarified and on the matter of liquidated damages of tort, dual actionability principlebe taken into consideration.