Jurisdiction And Choice Of Law In Trade Marks And Domain Names Disputes

Abstract

This research deals with the questions of jurisdiction and choice of law in Trade Marks and Domain Names disputes and the problem that relates to a geographically border market, globalization, has changed the territorial scope of producers interest, but the trade marks disputes remain the same in kind. The temptation thus is simply to apply traditional trade marks concepts. In this research, we have examined contributions from a number of private international law and intellectual property scholars and concerned international organizations such as WIPO, WTO, addressing the issue of how to resolve transnational intellectual property disputes. The main objective of this research is to examine the existing rules of ascertaining the governing law in international intellectual property disputes, especially in the light of lack of legislations and judicial precedents as well as the legal literature and the actual need for such materials in stage of internationalization of trade, as the internet with the feature of accessibility contributes to the need for establishing mechanism for determining the question of governing law. The other objective is discussing the problems which trade marks laws experience from the cross-border effect of the internet and free movement of goods and services. XIV This research is divided into four chapters. Chapter One discusses the main functions of a trade mark and its modern use on the internet, and the infringement of foreign trade mark that result from its usage as a domain name on the websites. It further outlines some of the private international law issues that trade marks law must confront as a result of that usage. Chapter Two notes briefly the jurisdiction of courts in general regarding the modern trade marks disputes, it then turns to international conventions to see whether they embody rules of jurisdiction and finally parties choice of forum is discussed as well as states practice. Chapter Three discusses the law applicable to intellectual property disputes and specifically trade marks and domain names disputes. It discusses the traditional methods of resolving legal conflicts in court litigation on the basis of application of local laws, and the challenges which may arise when applying this territoriality basis to disputes arising on the internet, which actively occur with little regard for physical boundaries. It further examines the legal questions of personal jurisdiction, conflict of laws and substantive law applicable to trade marks disputes. Chapter Four, attempts to make conclusion to the findings of the whole research, recommendations shall also be noted.