Thursday, January 17, 2019

Trimble on Territoriality and Remedies

Marketa Trimble has posted a paper on ssrn titled The Territoriality Discrepancy Between Intellectual Property Rights Infringement Claims and RemediesHere is a link to the paper, and here is the abstract:
When in Equustek v. Google a Canadian court ordered that Google de-list the pages of a defendant that infringed intellectual property (“IP”) rights under Canadian law, some commentators were surprised not only by the Canadian court’s assertion of personal jurisdiction over Google (a U.S. third party who was not a party to the original Canadian IP rights infringement litigation), but also by the court’s issuance of a remedy with global effects. However, global and other extraterritorial remedies are not unknown in IP rights infringement cases: U.S. courts have granted extraterritorial remedies in a number of such cases. This article reviews the various types of “extraterritorial remedies” – which the article defines as remedies that reach beyond the territorial scope of the underlying claim – and points out the problems caused by the resulting territorial discrepancy between the territorial scope of claims and the territorial scope of the remedies. The existing literature and international treaty negotiations have not focused on these remedies, which are typically discussed as part of the category of cross-border remedies. The article explores the phenomenon of the territorial discrepancy and considers the ways in which the problems generated by the territorial discrepancy might be addressed. 
I read through this paper last week, and found it very helpful as I try to organize my own thoughts for presentations I will be giving next month in Tokyo and Nagoya, Japan (the details of which I hope to blog about shortly).

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