Now in its sixth year, Class 46 is dedicated to European trade mark
law and practice. This weblog is written by a team of enthusiasts who
want to spread the word and share their thoughts with others.
WEDNESDAY, 23 DECEMBER 2009 An interesting article on IP, private international law and contributory infringmement cases
One of this Class 46 member's favourite legal crossroads: intellectual property and private international law is touched upon by a very interesting article here. The authors, Graeme B. Dinwoodie (University of Oxford - Faculty of Law), Rochelle Dreyfuss (New York University - School of Law), and Annette Kur (Max Planck Institute for Intellectual Property, Competition & Tax Law) deal with a very tricky - and popular nowadays – subject: contributory (or secondary) infringement. As Class 46 readers know all too well, the eBay and other auctionsites cases around the world have served to bring the relevant debate to almost a boiling point (a recent episode reported by Class 46 here). As the authors say
“…, actions premised on secondary liability are rapidly becoming the favored route for efficient enforcement. These actions permit rights holders to focus their attention on “deep pockets,” save them the trouble of suing individual end-users (who may also happen to be their customers), and can provide a simple mechanism for obtaining world wide injunctive relief. Examples include cases that attempt to impose liability on manufacturers of copying technologies for infringements caused by those who use their equipment; on purveyors of peer-to-peer file sharing software for the activities of those who download material without rightholders’ permissions; on internet service providers for subscribers’s infringing postings; and on other intermediaries, such as auction sites”
Of course, the variety of legal regimes and doctrines in the neighbourhood of secondary liability around the world do not facilitate research (that’s why it’s so interesting). The authors correctly point out that
“Addressing questions of choice of law in cases of secondary liability runs headlong into what conflicts scholars would call the challenge of characterization (or, in some countries, “qualification”): when does a case involve "secondary liability"? This is an ever-present dilemma for private international law. But it is particularly acute in this context. Different countries use a variety of labels to denominate the different forms of secondary liability that exist. Indeed, courts in some countries do not characterize potential liability as "secondary," but rather talk of liability flowing directly from a failure to do certain acts (such as implement measures or engage in monitoring or supervision). See, e.g., LVMH v. eBay, Tribunal de commerce [T.C.P.] [court of trade] Paris, June 30, 2008…”
A very interesting read no doubt (perhaps not for Christmas, though!).
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