Tue 09 October 2018
By Jayne He
Abstract:
Intellectual property owners often face difficulties when trying to enforce their rights in crossborder and multi-jurisdictional disputes. Enforcement processes usually need to be litigated jurisdiction-by-jurisdiction, which can be prohibitively complicated and expensive. Chinese investors can find themselves facing unpredictable outcomes if they try to enforce their intellectual property rights abroad, and outcomes may vary dramatically although similar facts are presented in each dispute in different jurisdictions. Similarly, foreign intellectual property holders may face quite diverse litigation environments and outcomes if they wish to enforce their rights in different jurisdictions, e.g. in the European Union (EU), the United States of America (US) and the People’s Republic of China (China). This article examines international steps being taken towards addressing these issues, and it discusses ongoing concerns. This article examines international steps being taken towards addressing these issues, and it discusses ongoing concerns. Categorizing developments as "cooperative" or "harmonizing", the article first examines cross-border cooperation in intellectual property enforcement and dispute resolution that is found in international treaties. Some agreements are specific to intellectual property law, while others have broader applicability but nonetheless affect the adjudication of intellectual property disputes by domestic courts. Initiatives with respect to the intersection of public international law and intellectual property may resolve many cross-border enforcement difficulties, and the article also considers the use of arbitration to side-step existing problems. The second half of the article examines harmonization. Horizontal and vertical harmonization are being used to streamline laws and administrative processes concerning the acquisition of intellectual property worldwide. This lays foundations from which harmonized enforcement mechanisms may evolve. The article concludes that, in due course, it would not be surprising to see groups of nations develop unitary patents, trademarks and/or designs, and international intellectual property courts through which to enforce them. It would also be unsurprising if – as its own intellectual property system matures,1 and it becomes increasingly dominant in world trade – China were gradually to take a more leading role in shaping the future of cross-border cooperation and harmonization in intellectual property enforcement and dispute resolution.
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