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Specialised IP Courts: Issues and Challenges

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Published in Specialised Intellectual Property Courts-Issues and Challenges, Global Perspectives for the Intellectual Property System, Issue Number 2: CEIPI-ICTSD. 2016, p. 15-41
Abstract Under the TRIPS Agreement (Art. 41 para. 5) countries are given the option to create specialisedintellectual property (IP) courts. On this basis, countries are free to decide what types of judicialbody or bodies have the jurisdiction to hear IP disputes. Although IP disputes are sometimesprimarily viewed as relating to the enforcement of intellectual property rights against counterfeiters(specifically in the copyright and trademark areas), the reality and the landscape of IP disputes aremuch more complex. The diversity of IP disputes makes it difficult to give a simple and unique answerto the question of whether it is advantageous or necessary to establish specialised IP courts. Thisdiversity is also reflected in the way in which national or regional lawmakers and regulators havestructured their IP dispute resolution systems. While recent studies demonstrate that there is nounique global system or even a prevailing system, a trend towards specialisation or centralisationof certain types of IP disputes seems perceivable at the global level. However, this trend does noteliminate the differences which remain, particularly regarding the scope of the jurisdictional powerof specialised IP courts.There are various advantages and disadvantages in establishing a specialised IP court. Improvementsin the quality of justice, time and cost efficiencies of the proceedings, as well as consistency anduniformity, are among the advantages that are generally identified. In terms of disadvantages,reference is generally made to the costs of establishing and of operating a specialised IP court.In addition, some have expressed concerns that such a court may become subject to political oreconomic influences and may develop ‘tunnel vision' deriving from mainstream legal and societalmovements.Given the diversity of legal systems and regimes, there is no single method for establishing anefficient IP court system that promotes innovation and social welfare. Similarly, there is no clearevidence that specialised IP courts more effectively promote innovation vis-à-vis non-specialisedcourts in all circumstances. However, it is clear that a sufficient level of experience and expertiseamong the courts and judges can significantly improve the quality of justice in IP disputes.How advantageous or necessary it is to establish specialised IP courts in a given jurisdiction dependson a number of factors which are not limited to IP issues. Rather, this determination will take intoaccount more general factors, including economics, the legal system and societal characteristics.Thus, the creation of specialised IP courts cannot be recommended in all circumstances. A decisionrelating to the establishment of specialised IP courts must consequently be made on the basis ofa fully informed, transparent and unbiased analysis of the situation which prevails in the relevantterritory.
Keywords Droit de la propriété intellectuelle
Note Full issue available at http://www.ictsd.org/themes/innovation-and-ip/research/specialised-intellectual-property-courts-issues-and-challenges
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Research group Droit - Propriété intellectuelle
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DE WERRA, Jacques. Specialised IP Courts: Issues and Challenges. In: Specialised Intellectual Property Courts-Issues and Challenges, Global Perspectives for the Intellectual Property System, Issue Number 2. [s.l.] : CEIPI-ICTSD, 2016. p. 15-41. https://archive-ouverte.unige.ch/unige:82262

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