Journal Article

Harmonization of IP litigation practice—still a long road ahead

Bruno Vandermeulen

in Journal of Intellectual Property Law & Practice

Volume 1, issue 1, pages 30-35
Published in print November 2005 | ISSN: 1747-1532
Published online November 2005 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpi015
Harmonization of IP litigation practice—still a long road ahead

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Legal context. Notwithstanding the advanced level of harmonization of IP laws, these substantive laws are still not applied in a harmonized way because of the vast differences in procedural rules amongst the member states of the European Union. For example, the speed, type of relief, costs and potential drawbacks of a legal action still vary substantially between countries. These differences continue to influence the choice of venue for many IP owners and their adversaries.

Key points. When a national or Community IP right is infringed and the potential acts of infringement (or infringers) are located in more than one jurisdiction, the situation might give rise to multiple parallel litigation in a number of countries. A well-informed IP specialist will not advise on such a decision without considering a number of issues, analysed in this article: (1) how and where to find evidence of the infringement, and its potential trans-border use; (2) whether the questions of validity and infringement are inseparable (particularly for patents); (3) the availability of injunctions reaching across national borders; (4) the availability of so-called “torpedo” actions; (5) the recoverability of costs and attorneys' fees; and (6) the ability to protect confidential proprietary information during the litigation.

Practical significance. As long as differences continue to exist between Member States, the level of IP enforcement will continue to vary from one jurisdiction to another, and the type of relief that is sought by the IP owner will never be exactly the same. Of course this creates disparities and disadvantages. The advantage of this situation is that an IP owner, when he is confronted with a multi-jurisdictional IP dispute, can pick and choose the best available procedural tools and remedies that are available in each jurisdiction. So forum shopping is still the name of the game, as every experienced litigator knows.

Journal Article.  3637 words. 

Subjects: Arbitration ; Intellectual Property Law

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