Rome II and intellectual property rights: Choice of law brought to a standstill


Article published in NIPR 2008, Alf. 4, p. 440-448

As from January 2009, private international law aspects of infringements of intelectual property rights ('IPRs') are governed by a new EU regulation ('Rome II').

Article 8 thereof, only gives the option to apply the national law of each of the Member States for which protection is sought. The worst case scenario is therefore that both plaintiffs and defendants have to fight a 27-headed-lex-protectionis-dragon in case of an Pan-European infringement. That means that such litigation will only be a real option for litigants with deep pockets and something that small or medium seized companies may not be able to afford.

The international private law regime as introduced by the Rome II Regulation for IPR-infringements is therefore a step back and basically blocks the gradual further development of this area of the law by case law. A clear example of a legislator that did not have a clear view of neither the problem nor the solution and therefore would have been wiser by just doing nothing.