IP Concerns About International Transactions in E-Commerce
One of the most remarkable characteristics of E-Commerce is that it occurs globally. IP may be used and licensed in many countries simultaneously. The global characteristic of E-Commerce businesses affects IP in a number of ways. It makes it difficult to find the infringer and enforce IP rights that are violated on the Internet. It is unclear what courts will have jurisdiction over disputes relating to E-Commerce and IP. Also, laws affecting IP vary from country to country so levels of protection may be different.
Lawsuits can be brought against your E-Commerce business or, conversely, your business may seek redress in national courts, but various legal procedural issues will affect such cases. If the parties are in different countries, it will be difficult to determine which court can or should be used. The court may or may not take jurisdiction (legal control) over the case, depending on many factors, but especially the connection between the parties and the country. As a practical matter, in order for a lawsuit to succeed, the defendant has to reside in the country in which the lawsuit is brought. Another difficult issue is what law to apply, especially if the laws of the countries of the parties involved are different. Finally, even if the lawsuit succeeds, it could be difficult to enforce a judgment in another country.
International arbitration is one way to deal with international E-Commerce disputes, though generally participation is voluntary and cannot be forced. Arbitration clauses may be agreed to in contracts, in which case the parties are later required to use arbitration. You should consider specifying binding international arbitration in any E-Commerce contracts involving international transactions. WIPOs Arbitration and Mediation Center specializes in international dispute settlement and is well suited to solving international IP problems arising in E-Commerce. Sample contractual arbitration clauses are provided in its Web Site (see below).
For more information
On arbitration and mediation, see:
- WIPO Arbitration and Mediation Center (http://www.arbiter.wipo.int)
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