Author Archives: Ivana Kunda

Essays in Honour of Professor Emeritus Spyridon Vrellis

VrellisEssays in Honour of Professor Emeritus Spyridon Vrellis, a long-term affiliate of the University of Athens, are issued under the title In Search for Justice. The volume contains an extensive curriculum vitae and bibliography of Professor Vrellis. It also includes 71 paper in four languages (Greek, French, English and German). According to the official information from the publisher, the contributors are:

Adamopoúlou P., Basedow J., Bogdan M., Borrás A., Voúlgaris I., Burian L., Yeoryiádis Ap., Gkórtsos Khr., Cordero J. Sanchez, Davrádos N., Deliyiánni-Dimitrákou Khr., Delikostópoulos I., Doúnga Al., Koumplí V., Drillerákis I., Dintjer Tebbens H., Dorís Ph., Frank R., Gaudemet-Tallon H., Grammaticaki-Alexiou A., Hartley T., Jessurun D?Olivira H. U., Kaïsis A., Karayiannis S., Karampatzós A., Katiphóris N., Kiraly M., Klamarís N., Kondíli I., Kotsíris L., Kourákis N., Kríspis I., Lagarde P., Lando O., Lipp V., Mantákou Á., Meeusen J., Meïdánis Kh., Moura Ramos R. M., Moustaïra E., Nafziger, J., Özsunay E., Pampoúkis Kh., Panópoulos G., Papadélli A., Papadopoúlou-Klamarí D., Papanikoláou P., Papasiópi-Pasiá Z., Pataut E., Pauknerová M., Pvifver M., Pelleni A., Pintens W., Poúlou E., Rethimiotáki E., Siehr K., Stathópoulos M., Stamatiádis D., Stribis I., Sturm F., Sturm G., Symeonides S., Sotiropoúlou M., Tagarás Kh., Tadaki M., Tarman Zeynep D., Tzákas D. -P., Tsavdarídis A., Tsevás A., Tsikrikás D., Tsoúka Khr., Vassilakakis E., Khristodoúlou K. and Zervoyiánni E.

Many contemporary topics on private international law are examined in the published papers. These are the contents (for which I thank Professor Vassilakakis) and other information about the Essays are available here.

Article on special jurisdiction in IP matters, including a comment on Coty

DavidoffThe previously reported CJEU decision in Coty Germany GmbH v. First Note Perfumes NV, concerning the infringement of the rights in the 3D Community trade mark, unlawful comparative advertising and unfair imitation, is the subject of a comment by Prof. Annette Kur, in her article Durchsetzung gemeinschaftsweiter Schutz-rechte: Internationale Zuständigkeit und an-wendbares Recht, fortcomming in GRUR Int., Issue 7/8, 2014.

Her criticism is primarily addressing the answer to the first question in which the CJEU reiterated that jurisdiction under Article 93(5) of CTM Regulation may be established solely in favour of CTM courts in the MS in which the defendant committed the alleged unlawful act. This is because she finds an interpretation of the provision contrary to the principle of territoriality of intellectual property rights, both national and unitary. She explains that the effect of this principle is absence of any possibility that there might be a single infringement of an intellectual property right with the event causing damage in one country, and the damage occurring in another. In such a situation there would be two distinct acts of infringement, one in each of the countries. Kur qualifies the CJEU reasoning as a fundamental misunderstanding of the structural features of the intellectual property law that distinguish it from other areas of tort law.

Slovenia: Conference on Evidence in European Civil Law

International scientific conference “Dimensions of evidence in European civil procedure law” is scheduled for 20-22 March 2014 in Maribor, Slovenia. The conference will provide an opportunity to review 28 national reports on the issue, and to share and discusse new unifying tendencies in EU law on civil procedure. It is aimed at approving and extending the Report on application of the Council Regulation (EC) 1206/2001, providing additional guidelines for better and swifter implementation of the Regulation, along with conclusions on its possible modernisation.

The conference program and other details, including the EU project within which the conference is taking place, are available at the conference official website.

Book on Rome Regulations and Maritime Law

For all interested in the maritime conflict of laws there is a book titled Regulations Rome I and Rome II and Maritime Law available here. This book is published by Giappichelli Editore and comes as a result of an EU funded project. Editors are Evangelos Vassilakakis, Nikolay Natov and Reuben Balzan and the contents include:

Introduction.
I. Regulations (EC) n. 593/2008 on the law applicable to contractual obligations (“Rome I”) and (EC) n. 864/2007 on the law applicable to non-contractual obligations (“Rome II”) (C. Esplugues Mota, G. Palao Moreno, C. Azcárraga Monzonís – Spain).
II. Marine insurance contracts under the Rome I and Brussels I Regulations: c?nflict of laws and jurisdiction issues (E. Vassilakakis, V. Kourtis – Greece).
III. The discipline of maritime transport contracts under the Rome I and Brussels I Regulations: conflict of laws and jurisdictional issues (I. Queirolo, C. Cellerino – Italy).
IV. Collisions and maritime salvage (Reuben Balzan, Keith A. Borg, Carlos Bugeja – Malta).
V. Maritime environmental delict/tort (N. Natov, B.a Musseva, V. Pandov, D. Sarbinova, Z.i Ianakiev, I. Kirchev, M. Stankov – Bulgaria).

The 3rd Petar Sarcevic conference on family law

The Third International Scientific Conference Petar Sarcevic: Family and Children – European Expectations and National Reality will take place in Opatija, Croatia, on 20-21 September 2013. The programme of this conference includes the following speakers and topics:

Friday, 20 September

Prof. Dr. KATARINA BOELE-WOELKI
Utrecht University
Family Law in Europe: Past, Present, Future – Keynote Address

Dr. BRANKA RESETAR
J. J. Strossmayer University of Osijek
European Principles on Parental Responsibility in the 2013 Draft Family Act

Prof. Dr. NENAD HLACA
University of Rijeka
Misuse of the Right to Family Reunification

Prof. Dr. AUKJE VAN HOEK
University of Amsterdam
Mediation in Family Matters with a Cross-Border Element – The Dutch Experience

Saturday, 21 September

Prof. PAUL BEAUMONT
Aberdeen University
A Possible Framework for a Hague Convention on International Surrogacy

Prof. Dr. COSTANZA HONORATI
University of Milano-Bicocca
The New Italian Provisions on Unicity of Status Filiationis and their PIL Implications

Dr. INES MEDIC MUSA
University of Split
Cross-Border Placement of a Child under the 1996 Hague Convention and the Brussels II Regulation

Dr. MIRELA ZUPAN
J. J. Strossmayer University of Osijek
Key Issues in the Application of the Maintenance Regulation

Dr. PATRICIA OREJUDO PRIETO DE LOS MOZOS
Compultense University of Madrid
Matrimonial Crisis under the Brussels II Regulation

Dr. THALIA KRUGER
University of Antwerp
Partners Limping Accross Borders?

Prof. Dr. VESNA TOMLJENOVIC and Dr. IVANA KUNDA
EU General Court, University of Rijeka
Rome III: Is it Right for Croatia?

The conference is scheduled to commence at 4 pm on Friday 20 September and continue the next morning at the hotel 4 opatijska cvijeta, with privileged prices for the conference attendees sending this accommodation form. The registration form for the conference should be sent to zeup@pravri.hr just as any questions regarding the conference. Here are also the details regarding the payment of the conference fee.

This conference follows the two Petar Sarcevic conferences reported previously, the first on the Brussels I Regulation and the second on maritime law. There seems to be no better topic for the third conference devoted to Petar Sarcevic than family law. His academic interests focused not only on private international law but extensively also on family law. In 1998 he became an associate member and in 2001 full member of the prestigious Institut de droit international and was appointed as Rapporteur of the Fourth Commission on the topic “Registered Partnership in Private International Law”. He was a member of numerous other international associations, including the International Society of Family Law, where he served as its president from 1997 to 2000 and member of the Executive Council for almost 15 years. Unfortunately, he was unable to lecture at The Hague Academy of International Law on the topic “Private International Law Aspects of Cohabitation Without Formal Marriage” in July 2005.

10th Jubilee PIL Conference in the Southeast Europe

The series of regional Southeast European private international law conferences is celebrating its 10th jubilee this year. There are four topics under the general conference title “A Decade in the Development of Private International Law: 2003-2012“:

1. Private International Law of the European Union (rapporteur: Prof. Dr. Michael Bogdan, Faculty of Law Lund, Sweden);

2. National Systems of Private International Law and Regional Cooperation (rapporteur: Prof. Dr. Christa Jessel-Holst, Max-Planck Institute of Comparative and International Private Law, Hamburg, Germany);

3. The Hague Conventions on Private International Law (rapporteur: Mr. Hans van Loon, Secretary General of the Hague Conference on Private International Law, Netherlands);

4. Comparative Private International Law (rapporteur: Prof. Dr. Kurt Siehr, Professor Emeritus at the Faculty of Law, Zürich, Switzerland, Free Research Associate at the Max-Planck Institute of Comparative and International Private Law, Hamburg, Germany).

The conference will take place on 4th and 5th October 2012. Appropriately so, the hosting institution is the same one which hosted the first conference in the series, the Faculty of Law of the University of Nis in Serbia. Further details concerning the conference are accessible at the official conference website.

The conference preceding this one was announced here.

Liber Amicorum for the Croatian Professor Emeritus Krešimir Sajko

Liber Amicorum for Professor Emeritus Krešimir Sajko was published within the Collected Papers of the Zagreb Law Faculty, volume 62, numbers 1-2. The papers in Croatian, German and English language published in the Liber Amicorum fall under the topics on private international law, international civil procedure, international commercial arbitration and alternative dispute resolution, as well as private law – comparative and Croatian. The table of contents is available here: 00 Nulti.indd. Professor Emeritus Sajko is one of the renowned Croatian professors of private international law, while his interests reach much further which is confirmed in his rich opus listed here 27 Popis radova.indd.

Benedetta Ubertazzi’s book on Exclusive Jurisdiction in IP

Benedetta Ubertazzi, an Assistant Professor of International Law at the Faculty of Law of the University of Macerata (Italy), has published a book titled “Exclusive Jurisdiction in Intellectual Property”. The issue of exclusive jurisdiction in intellectual property matters, especially those related to existence and validity of intellectual property rights, was revived in the recent years due to several important court cases, including the CJEU judgment in GAT v. LuK, the US ruling in Voda v. Cordis, and the UK decisions in Lucasfilm v. Ainsworth. In this book Benedetta Ubertazzi argues that the grounds regularly invoked to support the exclusive jurisdiction rules related to intellectual property rights do not stand the test of justifiableness. Moreover, she purports that such exclusive jurisdiction should be abandoned because it runs contrary to public international rules concerning the avoidance of a denial of justice.

The book is published in 2012 by Mohr Siebeck as 273rd title in a series of books Studien zum ausländischen und internationalen Privatrecht (StudIPR) and available for order here, also as an e-book. The article by the same author on this topic was published in 15 Intellectual Property L. Rev. 357 (2011) and available here.

Fukuoka conference: Regulatory Hybridization in the Transnational Sphere

Professor Toshiyuki Kono of the Kyushu University is organising a two-day international conference titled “Regulatory Hybridization in the Transnational Sphere“. Motivation for choosing this particular topic and the features of the conference are described by the organiser as follows:

[N]ational laws and public international law are no longer the exclusive regulatory authorities today. Instead, regulatory initiatives are shared by a complex network of nation States, international organizations and transnational private communities as a result of processes such as globalization, privatization, outsourcing, and self-regulation. Accordingly, national domestic laws, public international norms, and the newly proliferating private regulations co-exist in the current condition of transnational law. Furthermore, indirect connections between these three regulatory forms have increasingly developed, resulting in the proliferation of innovative hybrid forms of regulation. [...]

The purpose of this conference is to explore various issues relating to hybrid normative structures in the transnational sphere. For this purpose, the conference underscores inter alia the following questions:

1. If regulatory hybridization does not simply consist of a reintegration of norms, and if it is not simply the delegation of the rule-making authority to self-regulatory institutions, what precisely does the contemporary hybridization of norms refer to?
2. What are the primary merits & de-merits of hybrid forms of governance?
3. Can the proliferation of hybrid forms of governance be explained solely by reference to efficiency or is it being driven by other factors?
4. What conceptual tools are most helpful in clarifying the precise form of regulatory hybridization?

The conference will take place on 11 and 12 February 2012 at the Kyushu University, Nishijin Plaza, Fukuoka (Japan). Additional information is available at the conference website, including the program.

Multiple defendants and territorial intellectual property rights: Painer revisits Roche through Freeport

Our colleague Dr. Mireille van Eechoud, currently of double affiliation as an Associate Professor at the Institute for Information Law, Universiteit van Amsterdam and a Visiting Scholar at the University of Cambridge Centre for Intellectual Property and Information Law, was kind to share with us her views on the Painer case (Case C-145/10) and its relation to the preceding EU Court of Justice case law on the matter. Here is her full opinion:

Could the CJEU’s new stance on art. 6(1) Brussels Regulation 44/2001 be explained by the fact that the Court is very activist of late in shaping areas of copyright law which were not considered harmonized – of which the Painer case is itself an example? Or has the Court taken to heart the criticism unleashed by its Roche judgment on multiple defendants jurisdiction? The Advocate General certainly seemed to, citing among others the position of the European Max Planck Group on Conflict of Laws in Intellectual Property (CLIP). Whatever the reason, the Painer judgment from 1 December 2011 (Case C-145/10) signals a departure from the strict formalist-territorial approach to jurisdiction in intellectual property matters. The Court says that joining defendants under art. 6(1) Brussels Regulation is not precluded ‘solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned’.

In the case at hand, a freelance photographer from Austria claimed infringement of her copyright in portrait photos. She had made a series of portrait photos of a 6 year old girl at a nursery. The girl was later abducted and spent 8 unspeakably horrible years in captivity. The photographer gave prints of the portrait photos to the parents and police. Some of them were subsequently released by Austrian authorities in the context of the search. The girl’s eventual escape was a major news item across Europe. Lacking current photos, the defendant newspapers published the old portrait photos. The photographer had not been asked for permission, nor credited.

The photographer brought various actions in Austrian courts. In these disputes the question whether there was copyright in the photos, or some other right, and what the scope of such protection is under German and Austrian law was hotly debated. The proceedings which led to a preliminary reference were against five newspapers: one established in Austria, the other four in Germany. The Austrian newspaper was only distributed in Austria; the German newspapers had primary distribution in Germany with additional distribution in Austria.

So could the Austrian court assume jurisdiction for the infringements in Germany and Austria, with the Austrian newspaper as anchor-defendant under article 6 Brussels Regulation? The provision allows a plaintiff to consolidate actions against different defendants resident in the EU in one domestic court, ‘provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’. Previously, in the much criticized case C-539/03 – Roche Nederland v. Primus, the Court ruled that a close connection requires a same situation of law and of fact. When claims concern the infringement of territorially distinct patent rights (as granted under the European Patent Convention), for that reason alone there can be no risk of irreconcilable judgments because there is no ‘same situation of law’.

In Painer, the Court seems to abandon that reading. The fact that the claims against the defendants concern infringement of the territorially distinct copyrights for Germany and Austria does not of itself preclude the possibility of consolidating them on the basis of article 6 Brussels Regulation. This is the more so, the Court adds, if the applicable laws in question are very similar. The referring Austrian court had concluded that was the case: German and Austrian copyright and related rights law share essentially the regimes for photographs (which is partly due to EU harmonization).

Oddly enough, and unlike the Advocate General, the Court does not refer to its Roche judgment. Rather, it builds its reasoning primarily on Freeport (case C 98/06). There the Court stated that the fact that claims against defendants have different legal bases (e.g. in contract and tort) does not preclude application of art. 6 per se. The more obvious parallel in intellectual property matters isof course in situations where say the claim against one defendant is based in copyright infringement, and the claim against the co-defendant in contract (breach of a distribution agreement for example). I am not so sure that Freeport is easily applied to cases where infringement of copyright in different countries is at stake.

In Roche, A European Patent had been granted through the European Patent Office, which resulted in a bundle of patents for the plaintiff, each equivalent to a national patent for each of the countries applied for. The subsistence and scope of these national patents is very similar across European Patent Convention states. The criticism of (among others) CLIP is that in cases where national intellectual property rights have been unified or harmonized to a great degree, it is artificial to bar a plaintiff from joining claims merely because formally speaking different territorial rights are involved (see the CLIP position).

The defendants in Roche were all part of the same parent company, and basically sold the same allegedly infringing products in their respective local markets. Yet because each defendant acted locally (albeit under the direction of the parent), allegedly infringing the local patent, the Court did not accept there was a same situation of law and fact. In Painer, it is not clear whether there is any connection between the defendants. They may have acted similarly from the perspective of the plaintiff: each published photographs she made, over a similar period and as illustration of news about roughly the same matter. But I don’t see how that qualifies as a ‘same situation of fact’ for art. 6 purposes. Surely, the fact that persons behave in similar ways with respect to a (potentially) copyrighted image does not make the claims closely connected?

The answer to that question is in the Court’s observation that ‘It is, in addition, for the referring court to assess, in the light of all the elements of the case, whether there is a connection between the different claims brought before it, that is to say a risk of irreconcilable judgments if those claims were determined separately. For that purpose, the fact that defendants against whom a copyright holder alleges substantially identical infringements of his copyright did or did not act independently may be relevant [my italics].’ I would argue that whether or not the co-defendants acted independently is in cases like these not a potentially relevant factor, but a crucial factor. If not, in this case our Austrian photographer could sue before Austrian courts any of the German publishers for distributing newspapers with the photos in Germany, because a completely different unrelated paper based in Austria happened to have printed the same photo. There has to be some relationship between the defendants, or at least between the anchor-defendant and the co-defendants. If not, all that is left is the foreseeability escape the Court articulated in Freeport.