Font Size: a A A

Resaearch On Jurisdiction Of Cross-border Intellectual Property Infrigement

Posted on:2021-03-23Degree:MasterType:Thesis
Country:ChinaCandidate:H Y RenFull Text:PDF
GTID:2416330623480694Subject:International law
Abstract/Summary:PDF Full Text Request
The special era of emergence of intellectual property(hereinafter referred to as IP)right and the differences in attitudes and protections of it by various countries led to their strict territoriality,which further led to the fact that an IP right is only valid in the country where it was authorized.In order to improve the international protection of IP rights,under the guidance of relevant international conventions,a wave of unification of IP laws emerged,and since then foreign rights holders can enjoy “national treatment”,which however accompanied by isolated protection.For instance,the right holder can apply a patent in different member states of the Convention based on his own invention,what he does obtained is not “one patent”,but a set of parallel patents with the same or similar content granted and protected by their respective domestic laws.When infringements occur in multiple countries at the same time,each country will have jurisdiction over the disputes involving the only patent granted by its own country,but care no about these similar parallel patents,which will make the right holder has no choice but sues in different countries separately to defend his rights.With the coming of economic globalization,fast international transportation and developed Internet,infringements of IP rights become simple,frequent,and often occur in multiple countries at the same time.The above-mentioned “domestic protection” mode may not only force rights holders to give up protecting their rights due to the extremely high cost,but may in turn force defendants to give up the opportunity to defend,which could make it become a litigation method used by the plaintiff or defendant.It could be more complicated in practice in case of multiple infringers existing at the same time,omnipresent infringements caused by the Internet,etc.In the absence of a uniform substantive law convention or a convention to harmonize jurisdiction and applicable law worldwide,several countries and International organizations of scholars have begun to re-establish jurisdictional mechanisms for IP infringement cases against numerous foreign IP lawsuits,such as EU's jurisdictional provisions in the Brussels Regulations.In addition,international organizations of scholars like American Law Institute and Max Planck institute have conducted active discussions from the perspective of private international law so that numerous guiding principles have emerged.Some draft conventions like drafts of Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters have also explored the jurisdiction problems of IP infringement disputes.Although various international jurisdiction rules for cross-border IP infringement has been exploring,there is little progress made in China.At present China is at a critical moment trying to become a powerful country of IP,with the increase of output of IP rights of China,the cross-border IP infringement follows.However,China is currently in the embarrassing situation of legislative gap and judicial disorder for IP infringement so it's the time to build our jurisdiction system over it.By analyzing the evolution of jurisdiction rules on cross-border IP infringement,this paper aims to make suggestions for the establishment of the jurisdiction system of cross-border IP infringement in China.This paper consists of four chapters.Chapter I introduces the flourish and decline of territorial jurisdiction.It starts from revealing the underlying cause of the flourish of territorial jurisdiction by historical analysis,and then shows the changing process of territorial jurisdiction to other jurisdiction rules.Chapter II focuses on several types of jurisdictional rules in place of territorial jurisdiction applicable to cross-border IP infringement.Based on the different legislation and judicial practices of various countries,this chapter mainly introduces the jurisdiction of defendant's domicile,jurisdiction of forum delicti,forum choice and jurisdiction by voluntary appearance,and further explores the rationality and possibility of their application to IP infringement.Chapter III mainly analyzes the application of jurisdiction rules over special cross-border IP infringement.This chapter firstly introduces application of those jurisdictional rules mentioned in Chapter Two to special cases as the online infringement of IP,the infringement of IP rights of multiple defendants,and jurisdictional problem over the validity of IP rights in infringement disputes,and subsequently analyses the expansion of the jurisdiction and its limits resulting from some adjustments of those jurisdictional rules made during their application.Based on the research of the previous three chapters and analysis of the legislation and judicial practice of cross-border IP infringement in China,Chapter IV puts forward reasonable suggestions for the construction of our jurisdiction system of cross-border IP infringement.In short,we should make gradual breakthroughs in territorial jurisdiction,and consider to build a jurisdiction system of cross-border IP infringement which takes territorial jurisdiction as the center,focuses on the jurisdiction of forum delicti,takes the jurisdiction of the defendant's domicile as the auxiliary,recognizes the jurisdiction of forum choice and jurisdiction by voluntary appearance,and has reasonable flexibility as well.
Keywords/Search Tags:Cross-Border Intellectual Property Infringement, Territorial Jurisdiction, Jurisdiction of Defendant's Domicile, Jurisdiction of Forum Delicti, Forum Choice
PDF Full Text Request
Related items