| The emergence and development of global business activities and the inception of the Internet brings about many problems related to cross-border enforcement of IP rights.These issues have attracted much attention from lawyers within the fields of both private international law and IP law.The problems in this field can be very challenging,given the complex interaction between principles of property law,contract and tort law and the traditionally territorial nature of disputes relating to intellectual property rights.Multi-state distribution of intellectual property and multi-state infringements are corollaries of the worldwide web.It goes without saying that the territorial principle makes the protection of intellectual property rights increasingly difficult where infringements are inherently ubiquitous because of the communication techniques used.In most cases,the courts adhere to strict territorial principles in intellectual property cases.Therefore,although the intellectual property market is global,intellectual property rights holders must seek intellectual property protection in every country.This paper discusses the Draft Convention on the recognition and enforcement of foreign judgments in civil or commercial matters(hereinafter referred to as“ the Draft Convention ”),which is being discussed at the Hague Conference on Private International Law.At present,the conclusion of the Convention has entered the negotiation stage at the international level.At the stage,according to the preparatory work of the Working Group,the Special Committee held three meetings in June 2016,February and November 2017 respectively,and produced a number of drafts that would form the basis of the discussion in this paper.IP rights are an important economic factor,and a secure legal framework for cross-border cases is of the essence.There are many cross-border situations,which might require the recognition or enforcement of an IP-related judgment in another country.While the principle of territoriality of IP rights might make some difference when considering the recognition or enforcement of an IP-related judgment.As a result,issues related to intellectual property matters have become an important topic for discussion at the meetings of the Working Group and the Special Committee.Once China has ratified the Convention,it is necessary to apply the Convention's provisions on the recognition and enforcement of judgments to refuse recognition and enforcement of intellectual property infringement judgments or to take other measures to maximize the protection of national interests.Four chapters are included in this paper.The first chapter mainly introduces the recognition and enforcement system of foreign judgments.Basically,the development of appropriate principles in the area of recognition and enforcement of foreign judgments is essential for an effectiveness protection of IP rights in the international sphere;however,it seems that recognition and enforcement have traditionally not played the important role they may deserve in international IP litigation strategies.Courts in different countries faced disputes concerning cross-border enforcement of IP rights.However,in most cases courts took?strict territorial approach to IP rights and refused to recognize and enforce the IP related judgments by foreign courts.The controversy over intellectual property rights in the draft Convention is related to the territorial nature of intellectual property rights,but more because of the particularity and sensitivity of intellectual property itself,and that is why many countries cannot handle consensus on how the Convention deals with these matters.For developing countries,the obligation to recognize and enforce judgments is more often than not,and the lack of reciprocity between the reduced number of judgments accepted and the increased obligation of recognition and enforcement has often had a negative impact on developing countries,If the object of the relevant right is not retained in the declaration,the interests of its nationals will not be protected.In the second chapter,after a brief introduction to the background of this article and the intellectual property infringement clauses covered by the Convention,the second chapter will further analyze the disputes arising from the intellectual property provisions of the Convention.Intellectual property matters are important areas of special significance to China.The gap between China and the developed countries should not be neglected,and this situation will continue for a long time.If China ratifies the Convention in the future and no measures taken in relation to the provisions of the intellectual property infringement judgment will undoubtedly cause damage to its own interests.The third chapter discusses how to use the Article 7:Refusal of recognition or enforcement of the convention to deal with the intellectual property infringement judgments that seek for recognition and enforcement.The recognition and enforcement of intellectual property infringement judgments does not violate the territorial nature of intellectual property rights.It is more about the recognition and enforcement of damages other than the rights itself.Whether or not to recognize and enforce an intellectual property infringement judgment is a relatively flexible operation for China as a requested country in the future.China can decide on each special judgment in accordance with the Article 7 of the Convention.The fourth chapter is the conclusion of this article,summarizing the contents of the first three chapters.As the draft Convention is under discussion,only three drafts and two corresponding interpretations have been published,and the provisions on intellectual property have changed accordingly,the provisions on intellectual property rights in the final text of the final convention are now unknown.The conclusion of this paper only has a certain predictive value and does not give sufficient reference value to the declaration of the intellectual property clause when China finally accede to the ratification of the Convention. |
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