The World Intellectual Property Organisation held a two-day forum this week to discuss problems such as this but made little headway in offering solutions.
Intellectual property protection has traditionally been based within national territories. But which nation's laws should apply when a trademark holder in France sues a company with the same trademark in Germany for infringement because the German company has established a Web site that is available to French consumers?
"Today, the systems [for protecting intellectual property] can no longer work given the global dimensions brought on by the Internet," said Andre Lucas, a law and political science faculty member at the University of Nantes in France. "Legal experts need to produce completely new solutions."
One approach that came under intense scrutiny at last-week's forum was the draft convention being crafted by the Hague Conference on Private International Law aimed at setting international rules for determining the court in which foreign parties can be sued and when countries must recognise the judgments of foreign courts.
Following the WIPO conference, representatives from the Hague Conference on Private International Law were expected to meet with officials with expertise in intellectual property to discuss their concerns with the draft convention. Hague officials plan to hold a similar meeting with e-commerce experts at the end of February in Ottawa, said Christophe Bernasconi, first secretary with the Hague conference.
"We do not share the view that we do not take concerns [about the convention's impact on e-commerce] into consideration," Bernasconi said.
James Love, director of the U.S.-based Consumer Project on Technology, argued that intellectual property should be exempted from the convention because of the impact it could have on consumers. He claimed that the draft convention would extend the range of over-reaching intellectual property regimes globally, limit the scope of fair-use exceptions to intellectual property rights and impose other limitations on consumer rights.
Some argue that crafting a convention to address jurisdictional issues will take too long and that alternative dispute resolution may provide an interim solution. Francis Gurry, WIPO's assistant director general and director of its arbitration and mediation centre, said that it is easier to bring two parties together to try to resolve a dispute than for nations around the world to agree on a treaty.
WIPO helped craft a policy instituted in late 1999 by the Internet Corporation for Assigned Names and Numbers, the organisation charged with managing the Internet's domain name system, for resolving trademark disputes involving domain names. Gurry and other supporters point to the ICANN uniform dispute resolution policy as a successful example of how alternative dispute solution can be used to resolve Internet disputes.
Love and others complain, however, that the ICANN process is one-sided in favor of business interests, a claim both ICANN and WIPO officials deny. Graeme Dinwoodie, a law professor at the Chicago-Kent College of Law, also notes that questions concerning applicable law and jurisdiction emerge even within the context of the ICANN dispute resolution process because the arbitration panelists must consider national laws when making its decisions.
WIPO has launched other initiatives aimed at addressing some of the questions surrounding applicable law and jurisdiction raised by the Internet. WIPO is working on guidelines, which it hopes to complete this year, for how the same trademarks in different countries can coexist on the Internet, said Denis Croze, who heads WIPO's trademark law section.
