Private International Law Flashcards
Samsung v Apple case
they proceed in different jurisdictions of law around the world.
PhoneCorp case
1) Jurisdiction
- Panama basis general provisions (in defendants domicile)
- ALI US (targeting jurisdiction) connection to the US
- South Africa (register based) domain servers based.
Australia does not create the jurisdiction thee are no specific connection
advertisement, the domain name with the specific country, servers. it is insufficient but it can be an argument to create one.
2) appcicable law
1) Panama law (for damages, infringement which occurs in Panama)
2) US law (us law) 301:1 ALI (the applicable law will be for register right for each country of the registration. register rights are patent, trademark, design etc, and for other IP rights the law for each states for which the rights protection was sought. industrial rights and copyright is not registered right (for copyright there will be a letter B (for the protection was sought), and trademark will be a letter A, right for registration)
3) South Africa
for infringement in US, for any activity in the USA, the Panama court that have a jurisdiction will also be over the USA apply the USA law because it is the registration of the US trademark.
How to proceed with recognition the enforcement of foreign judgment?
Panama’s court has assesst the damages also in the US and South Africa
how to enforce the recognition of these judgment in US?
401: the recognition of enforcement
it will be automatically recognize there will be fair and equitable process such as right to be hear, that has been provided.
What PhoneCorp can do agains Mr Business?
so PhoneCorp wants to stop Mr.Business to do a parallel Import. Can he stop him?
Can he sue him in EU?
- he can sue him in Switzerland! (jurisdiction)
- applicable law Swiss law for Swiss trademark infringement, for each law all EU law to respect to parallel import?
- regional exhaustion
mobile phone which sold in US and there not not exhausted right to resell within EU therefor PhoneCorp can prevent Mr. Business to do business with EU.
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no global framework there is the regional framework regulation in EU
20/15 Directives regulation on recognition of enforcement of the judgment in civil matters Brussel 1
and applicable law 5/9/3 law applicable to contractual obligation Rome I
and not contractual obligations under tort law the applicable law will be provided 864 Rome II
in Switzerland (Lugano Convention) jurisdiction and recognition of judgments, this applies between the Switzerland, EU, and Norway, Island. this for jurisdiction and governing law we have our swiss act on the private international law then based on the fact that there is not a global regulatory framework, each country or each region will apply there own regulatory framework to answer these questions.
soft law guidance (private law and IP guidance) ALI and CLIP specific guidance.
Currency, domain name, spesific advertisement in the country.
Jurisdiction
in Phonecorps was at least 2 jurisdiction.
1) Domicile of the defendant art 201:1; art 2:101 CLIP, art 2 CL jurisdiction (basic complete domicile jurisdiction, where the person is residents
2) choice of the court art 202 (1) ALI (exclusive and complete jurisdiction)
distribution network there is always the choice of court and choice of the applicable law.
Mass-market contracts? (ALI has an article 202:4 not valid)
- terms and conditions (unexpected clause, consumer law may not waive the jurisdiction if there is their own or the provider) consumer can have a choice of the law.
3) Place of infringement (Harmful event) (art 5.3 Lugano Convention or Brussel Convention 1 ) art 204 (1) ALI
minimum contact to state
targeting activity
4) Country of registration
ALI 213
What is complete and exclusive jurisdiction?
Complete - is to be able to assess infringements worldwide such as damages
Exclusive - is parties can not got another court they are agree on one court and this will be only the one dealing with the case.
Governing law
1) Infringement art 301 (1) ALI (territoriality principle)
a) state for each registered rights
b) for other ip rights, the law of each state for which protection is sough art 3:102 ClIP, art 8 Regulation 864/2007
2) Choice of law
a) freedom of choice art 315 (1) // art 3:606 CLIP
b) Art 315(2) in the absence of choice in the contractual relationship // Art. 3:501 CLIP art 122.1 Swiss Act of Private International Law
-mass market contracts ?
to have a specific law, there should be well hight lighted in the terms and conditions.
3) Exceptions
Art. 321 ALI (exception in case
Law of the State with the closest connections to the dispute, i.e. location
of ubiquitous infringement)
of their activities, markets of the work (art. 3:603 CLIP)
(minimum contact)
Art. 322 ALI (ordre public) (//art. 3:901 CLIP)
Art. 323 ALI (mandatory rules) (//art. 3:902 CLIP)
Recognition / enforcement of foreign judgments
Principle: Art. 401 ss ALI (// 4:101 ss; art. 32 ss LC) (broad recognition) Exception
Art. 402 ALI (no enforcement in case of default judgments) (// art. 4:201 CLIP: if no jurisdiction of the foreign court)
Art. 403 (1) ALI (no enforcement in certain cases, e.g. public policy) Art. 411 (2) ALI (punitive damages) (// art. 4:401 6 402 CLIP)
Art. 413 ALI (declaration of invalidity)
Application
A. Jurisdiction
1. Defendant’s domicile (Art. 2 LC; Art. 201 (1) ALI; Art. 2:101 CLIP)
Jungle case: Facts: - Black white movie. - Company from EU colorize Issue: unauthorized action (colorize movie),
defendant said that he has assigned all the rights for copyright.
Infringement:
inebriety of the movie (work)
moral right
Hold: applicable law is US Contract law (because it was assigned before )
Due to order of the public the court rejected the US law and applied french moral right law.
German copyright Act apply a specific provision to the author indication authors may not waive remuneration to the work, and in the case of the success of the work these authors may even increase there initial remuneration. it is really protective rules.
IV. Application
A. Jurisdiction
1. Defendant’s domicile (complete basis jurisdiction) (Art. 2 LC; Art. 201 (1) ALI; Art. 2:101 CLIP)
2. Choice of court (Art. 23 LC; Art. 202 (1) ALI; Art. 2:301 CLIP)
Mass market contract: Facebook v. internet user (TGI Paris, 5 March 2015)
- it can be during the dispute but after infringement
when such choice is incorporated in the contact.
the customer does not have any room for negotiation of the mass-market contract.
May a French resident bring the action in France against Facebook notwithstanding the Californian choice of court in the Terms & Conditions?
• consumer protection: art. 15 (1) c CL
• validity of a standard form agreement: Art. 202 (4)
facts:
- french professor posted a painting of some painter a naked painting
- Facebook removed that picture and even closed the account
- the French teacher brought the action against the Facebook in France
claiming: freedom of speech and artistic expression
Facebook said there is no jurisdiction in France because our terms and conditions provide only Californian court competent jurisdiction.
French court accepted the jurisdiction because :
1) because of the validity of the standard of the agreement
it should be not unexpected (not reasonable for the consumer)
2) there is consumer protection (consumer should have always a choice between his own and domicile of the provider
Place of harmful event (Art. 5.3 LC; Art. 204 (1) ALI; Art. 2:202 CLIP)
General: Pinckney v KDG Meditech AG (ECJ C-170/12)
Do French Courts have jurisdiction over a copyright infringement by a Mediatech (Austria) that reproduced the song on a material support in Austria and marketed it through internet websites in the UK?
someone is uploading (the act of uploading ) an infringing video it can be the place of the harmful event as the infringing act and another person who is downloading this video in another country (downloading will be the outcome of uploading act)
those two acts can be a reason for the jurisdiction.
Facts:
- Mediatech produced infringing CDs of the Pinckney, sold them through the UK website.
- Claimant found those site from Toulouse
court of Toulouse decline that case but the court of appeal accepted
Q: France is the place of harmful event or not?
classical jurisdiction, in this case, is Austria.
so defendant said that there is no infringement because we did not sell them to France
and Claimant reply yes because the website is accessible form France (accessibility principle)
personality rights:
Place of harmful event (Art. 5.3 LC; Art. 204 (1) ALI; Art. 2:202 CLIP)
Internet: Pebble Beach Company v. Caddy (453 F.3d 1151)
Do American Courts have jurisdiction over a trademark infringement of Pebble Beach (Californian golf club) (claimant) for the registration of www.pebblebeach-uk.com by a British resident (Caddy) (defendant)?
Pebble Beach Facts:
- Claimant company domicile in the US which operate and owns a Gold Resort
- Defendant UK resident operating small BnB Hotel in England.
sued for trademark infringement
Issue: lack of jurisdiction
accessibility vs minimum contact
domain name, the currency, it was a passive website.
(there is no activity for American targeting).
how to target or not to target? claimant say some Americans used your hotel.
The court rejected the claim.
art 3 of the WIPO recommendation gives criteria
any investment made in the given states.
