ARTICLE: INTELLECTUAL PROPERTY RIGHTS AND EXCLUSIVE (SUBJECT MATTER) JURISDICTION: BETWEEN PRIVATE AND PUBLIC INTERNATIONAL LAW Skip over navigation
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Copyright (c) 2011 Marquette Intellectual Property Law Review
Marquette Intellectual Property Law Review

ARTICLE: INTELLECTUAL PROPERTY RIGHTS AND EXCLUSIVE (SUBJECT MATTER) JURISDICTION: BETWEEN PRIVATE AND PUBLIC INTERNATIONAL LAW

Summer, 2011

Marquette Intellectual Property Law Review

15 Marq. Intell. Prop. L. Rev. 357

Author

Benedetta Ubertazzi*

Excerpt



INTRODUCTION

A. Exclusive Jurisdiction Between Public and Private International Law
 
In the recent past, prestigious courts around the world have refused to adjudicate cases relating to foreign registered or unregistered intellectual property rights (hereinafter: IPRs), where the proceedings concerned an IPR infringement claim or where the defendant in an IPR infringement action or the claimant in a declaratory action to establish that the IPR is not infringed pleaded that the IPR is invalid or void and that there is also no infringement of that right for that reason (so called validity issues incidentally raised). 1 In these cases the refusal to adjudicate the foreign IPRs infringement and validity claims was grounded on exclusive subject-matter jurisdiction (exclusive jurisdiction) rules. 2 According to those rules, the State that granted or recognized the IPR has the exclusive jurisdiction to address claims related thereto, independent of its also having personal jurisdiction over the defendant. Among those decisions 3 are the Supreme Court of Appeal of the South Africa Republic's Gallo v. Sting Music 4 decision of March 9, 2010; the U.S. Court of Appeal for the Federal Circuit's January 2, 2007 decision in Voda v. Cordis Corp.; 5 the U.K. Court of Appeal's December 16, 2009 decision in Lucasfilm Entertainment Co. v. Ainsworth; 6 and the Court of Justice of the European Union GAT decision of July, 13 2006. 7

These decisions are grounded on the assumption that since IPRs relate to a State's sovereignty or domestic policies, IPRs are granted through ...
 
 
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