International Jurisdiction and the Law Applicable to Disputes Arising From Infringement of the Right to a Trade Name as an Industrial Property Right

Abstract

This article answers the following questions: (i) In the courts of which state may the injured trader whose right to a trade name has been infringed sue the infringers? (ii) May the injured trader sue the infringer for damages in their entirety (even in the part originating in the territory of other states)? (iii) What law is applicable to disputes arising from infringement of (or threat to) the right to a trade name in non-contractual obligations? (iv) May a choice be made of the law applicable to the disputes? (v) How may a number of applicable legal systems in the case of an infringement of the right to a trade name affecting the territory of more than one country be dealt with? In particular, the article discusses the various criteria contained in the Brussels I bis Regulation, the Rome II Regulation, Czech private international law (outside the mentioned regulations), and CJEU case law in this area, while emphasising the nature of the right to a trade name as an unregistered industrial property right. Finally, the article focuses on the issue of the qualification problem of the factual situation in international law.

Keywords

• right to a trade name
• non-contractual obligation
• international jurisdiction
• applicable law
• dépeçage