국제적 지식재산권 분쟁에 있어 국제사법의 해석과 적용

Abstract

Each country individually and independently defines the types of intellectual property rights (hereinafter “IP rights”) to be protected, the requirements for protection, and the remedy in case of infringement. Under the territoriality principle, the establishment, assignment, and extinction, and the content of IP rights are regulated only by the laws of the country which grants them, and the effect of IP rights is limited within the territorial boundaries of each sovereign country. With globalization, digitalization, and the development of easy means of propagation, cross-border intellectual property contracts or infringements are recently increasing. As a result, the issues of the establishment, validity, and extinction of IP rights often arise as a prerequisite question in lawsuits with foreign elements seeking protection of the rights or in disputes based on IP related contracts. Thus, domestic courts often encounter the international issues, such as international jurisdiction and choice of law in the litigation. The recently revised Private International Law has introduced several new international jurisdiction rules that govern IP disputes by taking into account international norms, such as the Convention on Choice of Court Agreement. Specifically, the Private International Law explicitly stipulates jurisdiction by agreement (Article 8), exclusive jurisdiction (Article 10), special jurisdiction over lawsuit regarding contract for IP rights (Article 38), special jurisdiction over lawsuit regarding infringement of IP rights (Article 39), etc. On the other hand, with respect to governing law, the provision declaring of the principle of lex protectionis (Article 24) was regulated with almost the same content in the other article (Article 40). From now on, in practice, it is necessary for domestic courts to correctly interpret and apply each of the above new provisions in the amended Private International Law when dealing with international IP disputes. To this end, this thesis has mainly analyzed the relevant provisions regarding jurisdiction and governing law by separating precedents and theories of various domestic and foreign into each circumstance as follows: ① when there is an agreement between the parties in suit; ② when the establishment, validity and extinction of IP rights are on the issue; ③ when there is a license agreement for use of intellectual property; and ④ when the infringement of IP rights is on the issue. This thesis further has covered related subject matters on intellectual property preliminary injunction cases, trade secret infringement cases, employee invention compensation cases, and domain name disputes.