Research On The Jurisdiction Of Foreign Trademark Infringement

In today’s world,the use of trademarks is characterized by globalization.With the deepening of economic globalization and the development of modern information technology such as the Internet,trademarks,as an important part of intellectual property rights and the core competitiveness of enterprises,have penetrated into all fields of international trade.At the same time,enterprises are facing increasing frequency and complex foreign-related trademark infringement disputes.In foreign-related civil lawsuits,the exercise of jurisdiction by different countries often leads to different adjudication results,and the judicial adjudication of foreign-related trademark infringement disputes concerns the economic interests of enterprises and even the rise and fall of the entire industry,and may even lead the creation of international rules.Therefore,how to determine the degree of looseness or strictness of domestic courts’ jurisdiction over foreign-related trademark infringement cases in order to effectively handle complex cross-border disputes is an issue that has fascinated and tortured scholars from all over the world in recent years.Judging from the legislation and judicial practice of various countries and the provisions of international treaties,there are great differences in the existing jurisdiction rules for foreign-related trademark infringement.Based on the huge value contained in trademarks and the national interests behind them,in recent years,many countries have broken through the traditional practice of exclusive jurisdiction and have jurisdiction over extraterritorial trademark rights,extraterritorial entities and extraterritorial acts by concluding international treaties or unilaterally way.The competition for jurisdiction over foreign-related trademark infringement disputes has become increasingly fierce.In addition to the introduction and conclusion,the main body of this paper consists of five chapters.Chapter 1: General issues on jurisdiction of foreign trademark infringement.First of all,it examines the historical evolution of the protection of trademark rights under private international law,and combines the meaning of the territoriality of trademark rights to discuss the influence of territoriality on foreign-related trademark infringement jurisdiction rules.With the weakening of the territorial nature of trademark rights,the jurisdiction of courts in various countries over foreign-related trademark infringement cases has shown a trend of gradual expansion.Secondly,it defines "foreign-related trademark infringement" from three aspects: the definition of "trademark infringement",the semantic interpretation of "foreign-related trademark infringement",and the main manifestations of foreign-related trademark infringement.Thirdly,it expounds the legal framework of foreign-related trademark infringement jurisdiction,including the institutional framework of the European Union and the United States as the main global jurisdictional models.The former focuses on the connection between disputes and courts,and the latter focuses on the connection between defendants and courts.Due to the intangibility of trademark infringement content,the global mobility of trademark information,and the territoriality of trademark rights protection,foreign-related trademark infringement jurisdiction rules are different from general civil infringement cases.At the same time,due to the differences in the private property and territoriality of intellectual property rights,the rules for foreign-related trademark infringement jurisdiction are also slightly different from other intellectual property infringement cases.Finally,the development path of foreign-related trademark infringement jurisdiction rules has roughly gone through from the stagnation of unified development of foreign-related trademark infringement jurisdiction,to the rise of international soft law for foreign-related trademark infringement jurisdiction,to the innovation of trademark infringement jurisdiction rules in the online field.Chapter 2: General jurisdiction of foreign trademark infringement.First of all,generally speaking,countries establish jurisdiction on the basis of the principle of actual connection,that is,the right to exercise jurisdiction depends on the specific connection between foreign-related trademark infringement cases and their own countries.With the frequent international exchanges and the expansion of international trade,the scope of foreign-related trademark infringement jurisdiction established on the basis of the principle of actual connection continues to expand,and it has roughly gone through an evolutionary process from exclusive jurisdiction to territorial jurisdiction to the expansion of long-arm jurisdiction.Secondly,reviewing the legislation and practice of the exclusive jurisdiction of foreign-related trademark infringement,we can see that with the elimination of strict territorialism,the exclusive jurisdiction of the country that grants trademark rights is gradually reducing.Thirdly,countries that have expanded their jurisdiction apply the territorial jurisdiction principle of general civil tort cases to foreign-related trademark infringement cases,mainly including the jurisdiction determined based on the principle of Actor Sequitur Forum Rei and the jurisdiction determined with the place of infringement as the contact place.At the same time,in order to provide guiding principles for judges in various countries to hear such cases,academic organizations in the United States,the European Union,Japan,and South Korea have published special provisions on the adjustment of international private law issues in cross-border intellectual property infringement disputes in view of the particularity of intellectual property rights.Finally,in recent years,U.S.courts have expanded the reach of long-arm jurisdiction in foreign-related trademark infringement lawsuits based on the minimum contacts standard.Long-arm jurisdiction has become an important carrier for the United States to promote its values and an important tool to protect overseas interests.Therefore,it is necessary to examine the judicial practice of the extended application of long-arm jurisdiction in foreign-related trademark infringement lawsuits on the basis of sorting out the legal basis of the long-arm jurisdiction in the United States,and analyze the harm of its expansion.Chapter 3: The extraterritorial jurisdiction of trademark law based on the effect test.Countries represented by the United States exercise extraterritorial jurisdiction on the basis of effect test in order to safeguard their national interests and foreign policy.The scope of the actual contact is open.Because different countries have different understandings of the actual contact,some countries question the legitimacy of extraterritorial jurisdiction based on the effect test.Therefore,the effect test as a jurisdiction principle is still controversial in international law.Under the effect test,U.S.courts exercise jurisdiction over extraterritorial trademark infringement that occurs extraterritorially but has a substantial impact or effect on U.S.commerce.First of all,discuss the theoretical basis for claiming extraterritorial jurisdiction of trademark law based on the effect test,including defining the concepts of extraterritorial jurisdiction and extraterritorial application,clarifying the legal origin and application conditions of the effect test,and sorting out the method and extent of the extraterritorial jurisdiction breaking through the territorial nature.Secondly,it examines the specific judgment criteria and relevant precedents for the extraterritorial jurisdiction of trademark law based on the effect test.The judgment test include the Vanity Fair test,the jurisdiction rule-of-reason test and the substantive effect test.Generally speaking,the U.S.courts make judgments based on factors such as the impact of extraterritorial actions on U.S.commerce,whether the defendant is a U.S.citizen,and whether it conflicts with foreign trademark rights,so as to limit the unlimited extension of its jurisdiction.Finally,although the extraterritorial jurisdiction of trademark law claimed based on the effect test protects the commercial interests and trademark interests of the United States,due to its excessive expansion,there are disadvantages such as ignoring the jurisdiction of the infringing acts,damaging the sovereign interests of other countries,and improperly interfering with the parties’ choice of the jurisdictional court.The US courts have established the presumption against extraterritoriallity,required to meet the requirements of in personal jurisdiction as the premise,and abide by the principle of international comity to limit the excessive expansion of such extraterritorial jurisdiction.Chapter 4: Jurisdiction on Special Issues of Foreign-related Trademark Infringement.Due to the complexity and diversity of the manifestations of some foreign-related trademark infringements,there are some special jurisdictional issues in practice.First,the online field challenges the traditional foreign-related trademark infringement jurisdiction rules,manifesting in the dilemma of identifying the parties,the difficulty in identifying the location of the trademark infringement,and the increase in jurisdictional conflicts.Based on this,countries generally make innovations and breakthroughs in traditional jurisdiction rules with web accessibility standards and purposeful use standards.Secondly,when the foreign-related trademark infringement committed by the actor has the dual attributes of infringement and breach of contract,it will be difficult to determine the jurisdictional court if there is a choice of court clause in the license contract.Judicial practice generally distinguishes the jurisdiction clause as an exclusive clause or a non-exclusive clause.terms to determine the competent court.Thirdly,regarding the issue of whether the court can make a ruling on the validity of the trademark right when the defendant raises an objection to the validity of the trademark right in a foreign-related trademark infringement lawsuit,there are two approaches in the practice of various countries: the exclusion of the validity of the jurisdiction and the validity of the jurisdiction.Finally,when the defendants whose domiciles are located in different countries each infringe the trademark rights of the corresponding countries in their own countries,and there is a connection between the acts,whether the court of one of the defendants’ domiciles can combine jurisdiction,and in practice,there is opposition and support for the combined jurisdiction of two opposing views,national law in favor of consolidated jurisdiction over multiple defendants requires that the aforementioned infringement actions be so closely linked that they need to be adjudicated centrally in a single court.Chapter 5: The reality and trend of foreign-related trademark infringement jurisdiction in China.The purpose of sorting out,analyzing and researching the contents of the foreign-related trademark infringement jurisdiction mentioned above is to put forward suggestions for improving the existing foreign-related trademark infringement jurisdiction rules in China.Chinese practice adheres to strict territorial jurisdiction over foreign-related trademark infringement disputes,showing obvious conservative characteristics,which is not conducive to Chinese effective protection of trademark interests all over the world.Specifically,China mainly has the following problems: first,the territorial jurisdiction is too narrow,making it difficult to govern extraterritorial acts and trademark rights;second,the long-arm jurisdiction has become a powerful weapon for the US courts to crack down on Chinese enterprises,and it is difficult for China to effectively deal with the long-arm Expansion of jurisdiction is applicable;third,there is a lack of “effect” jurisdiction,making it difficult to govern foreign trademark infringements that have an effect on China;fourth,the jurisdiction rules for special issues of foreign-related trademark infringement are not clarified.In order to strengthen the protection of trademark rights and maintain the market order,and meet the needs of the country to implement the strategy of strengthening intellectual property rights under the new situation,combined with the analysis of the preceding chapters,it is suggested that China should build a defense and aggressive jurisdiction mechanism,and build a new one on the basis of adjusting traditional theories.Jurisdictional linkages,effectively deal with foreign inappropriate extraterritorial jurisdictional measures,and ultimately strive to build a Chinese model with a complete system,a reasonable structure,and international standards that tend to provide trademark protection for Chinese companies that “go out”.