Multijurisdictional Litigation in International IP Disputes

Recently, the problems of multijurisdictional litigation are attracting more attentionsespecially as cross-border litigations related to Intellectual Property (hereinafter, IP)are on the increase. The parties to international IP disputes tend to make a use ofmultijurisdictional litigation as one of the litigation strategies. Under this situation,new rules for preventing those multiple litigations in international IP disputes haverecently been incorporated in the Principles or Proposal on conflict of law rules inIP proposed by the academic institutes and a group of scholars. This paper examines and analyzes the new approaches to multijurisdictional IPlitigation shown in the Principles or Proposal such as the ALI Principles, the CLIPPrinciples, the Japan-Korea Joint Proposal, the KOPILA Principles and the JapaneseLegislative Proposal from both legal and practical perspectives, focusing on thetheoretical approaches to the issue of multijurisdictional litigation (“lis pendens”) andthe influence of the territoriality principle of IP on “jurisdiction”. In conclusion, it addresses that those Principles or Proposal have severalfundamental limits to be global standards due to their legal character as the ModelLaw and their tendency to stick to their own legal traditions, even though they aredefinitely good references when drafting domestic laws or international treaty onrelated issues. And it suggests that, in order to harmonize the conflict of laws rulesin IP, the consensus on the meaning and scope of the territoriality principle shouldbe first achieved at global level and the author presents that, as long as theprinciple can be interpreted as derived from the provision of the Paris Convention,it should be considered as a legal principle and when it comes to the “jurisdiction”matters, the principle should be understood as the substantive legal concept, notprocedural one. Therefore, it does not affect the question as to determining jurisdiction. Multijurisdictional or parallel litigations can be regulated, unaffected by the territoriality principle. As a theoretical approach, it suggests to take “proper forum” approach rather thanthe recognition prediction theory and to unify the considerations for determining whichforum is more proper, taking into account the “Torpedo litigation” issue in IPdisputes and getting some implications from Japanese “proper forum” approach.