Private International Law Principles for Ubiquitous Intellectual Property Infringement - A Solution in Search of a Problem?

An empirical study of 56 cases from 19 jurisdictions dealing with a paradigmatic instance of ubiquitous infringement – cross-border online infringement of intellectual property (IP) rights – shows that the typical case will: • involve a local plaintiff suing a foreign defendant for a foreign action causing local damage to a local IP right (being either a trademark or a copyright); • neither challenge the validity of the IP right nor involve parallel proceedings elsewhere; • seek the remedies of injunction and damages, to be enforced locally; • resolve the issue of jurisdiction by determining whether local consumers have been targeted (in trademark cases) or can access the material (in copyright cases); and • apply local law without expressly considering some other applicable law. These findings suggest that the harmonized private international law principles currently being developed for transnational IP disputes may not be necessary, as a matter of practice, in most, if not all, cases.