Choice of Law in IP: Rounding off Territoriality

Abstract

From their inception, the different intellectual property rights (IPRs) have progressively enlarged their geographical sphere of action. Nowadays, international communications between creators and users are facilitated and the very creative processes can take place in trans-boundary scenarios. In this context, Private International Law (PIL) has gained relevance for an effective enforcement of the distinct IPRs, whose defense can be pursued in issues related to the right as such (existence and ownership), to their infringement or to their presence in contractual relationships. This chapter aims to present the current state of affairs of IPR choice of law offering a critical analysis with certain suggestions for future developments. For that purpose, it is convenient to begin with a reference to the general problems in the application of choice of laws rules and their respective repercussion in IPRs cases. Afterwards, the analysis will be systematized regarding the different IPRs conflicting areas. Firstly, the rights as such, secondly, the IPRs’ related contracts and, thirdly, the infringements. Beyond the academic projects reflecting the latest thinking of the doctrine in different parts of the world, the EU regional system will receive special attention due to its development, the number of States that use it and its influence beyond UE borders. The piece will finish with conclusions.