Governing Law in Von Dutch Case(2)

Study on 'Territorialitatsprinzip' and 'Lex Loci Protectionis' in the International Disputes over the Intellectual Property Rights

When territorialitatsprinzip is reviewed, the focus of discussion may well be shifted to the governing law; which nation's law should be applied to the disputes over the international transactions? 

Upon considering such principles for determining the governing law as 'lex loci protectionis,' 'lex loci origins' and 'lex fori,' it could be confirmed that 'lex loci protectionis' is being established as a primary principle. 

Despite the criticism that it does not properly reflect the changing international environment, 'lex loci protectionis' has provided for some important standards for resolution of the international disputes over the intellectual property rights. 

Accordingly, even though it is deemed necessary to introduce some concepts of 'lex loci origins' in order to interpret 'lex loci protectionis' anew, significance of 'lex loci protectionis' related to the governing law is expected to be highlighted continuously afterwards.

Governing Law in Von Dutch Case(1)

Study on 'Territorialitatsprinzip' and 'Lex Loci Protectionis' in the International Disputes over the Intellectual Property Rights

As the wave of a global community is stronger, the international disputes over the intellectual property rights are increasing rapidly in the international society. 

Furthermore, the rapid development of communication means not limited by time and space as internet together with more convenient transportations serves to increase the international disputes over the intellectual property rights necessarily.

In such circumstances, this study focused on 'territorialitatsprinzip' and 'lex loci protectionis' both applied to the multi-national disputes over the intellectual property rights. The former principle mainly applied to determine the jurisdiction of the criminal cases has played a great role in solving the international disputes over the intellectual property rights. 

Acts and judicial precedents of nations and the international trends show us well how  'territorialitatsprinzip' has been applied to the international disputes over the intellectual property rights.

Establishment of ASEAN Economic Community(6)

Establishment of the AEC(ASEAN Economic Community) and its implication for South Korea

As a matter of fact, a global war without guns has been underway to attract the ASEAN actively stretching itself to the world. For instance, Japan has been striving to enhance its clout on the AEC by devoting itself to investment on the infrastructure and key industries. 

South Korean business people navigating new growth chances have unanimously pointed out that Japanese business presence is dominant in the region. Moreover, China is speeding up recently by utilizing its extensive networks across the region. China has maintained robust retail and wholesale channels in most part of the ASEAN since around the 16~17th century when the Western forces first embarked on their rush to Southeast Asia. 

Unlike competitors heading forward, South Korea is often regarded encountered with shabby circumstance. Worries are prevailing that South Korea is way behind not only the running Japan but also the flying China. Other major players including Australia, America and the North Europe don’t sit idle as well. 

Prediction is that the ASEAN may play a crucial role of the last resort to save South Korea suffering from chronic weak growth. Needless to say, systematic and long-term approach is desperately needed in the unprecedented era of the AEC.

Establishment of ASEAN Economic Community(5)

Establishment of the AEC(ASEAN Economic Community) and its implication for South Korea

A local expert in Indonesia pictures potential changes in the region that the AEC may bring in the upcoming days. "People in Vietnam will start to learn the Thai language to drive taxies in Bangkok. There will be Laotians who will pick up Javanese text books to become cab drivers in Jakarta." 

Actually, Singapore has been importing housekeepers from its neighbors, Indonesia and the Philippines in particular. However, it will be highly likely that more human resources in various fields of the region will cross the borders of the ASEAN members with no limitation. 

In doing so, physical barriers will be torn down and regional exchanges and trades will be fairly accelerated. This will also gear up the possibility of the realization of the AEC overcoming the concern that the AEC blueprint 2025 may remain a mere declaratory gesture.

Establishment of ASEAN Economic Community(4)

Establishment of the AEC(ASEAN Economic Community) and its implication for South Korea

In spite of the skepticism raised, the importance of the birth of a sizable single economic community shouldn't be underestimated. Along with Africa and South America, the ASEAN has been called as the symbol of underdeveloped areas. 

Thus, major powers like America, the EU and China would remain invincible if the ASEAN members try to compete with them individually. However, situation would be different if joint efforts of the 10 countries to cope with superpowers is designed and carried out. 

As the old saying goes, "United we stand, divided we fall", the countries will have their confidence built up step by step. The economic clout will be further strengthened if the ASEAN succeeds in actualizing the AEC. 

Consequently, the influence of the AEC on the regional security issues will be also growing bigger. Against this background, hopes are high that the beginning of the AEC will serve an opportunity to create a new landscape for the 21st century.

Establishment of ASEAN Economic Community(3)

Establishment of the AEC(ASEAN Economic Community) and its implication for South Korea

What will be the ASEAN like in the time of the AEC? It may be too early to forecast the AEC in 10~20 years when the AEC just pulled up its anchor. Even short-term outlook is not an easy thing to challenge as emerging markets with high volatility consist of most parts of the region. 

This could explain why negative voices concerning the future of the AEC started to be echoed. The question is whether the AEC can evolve itself something beyond a regional agreement body. Doubts are cast upon the significant disparity of the social and cultural environment among the member countries. 

In addition, neither a single currency nor a central decision-making tower as those in the EU can’t be found. There exists considerable economic gap in the region as well. 

For example, Singapore is acclaimed to be in the rich Northern Hemisphere while Cambodia only records per capita GDP of about 1,000 USD. In this sense, it is no wonder that a tough itinerary is anticipated on the way to the substantial integration of the AEC.

Establishment of ASEAN Economic Community(2)

Establishment of the AEC(ASEAN Economic Community) and its implication for South Korea

Along with the ASEAN Political-Security Community and the ASEAN Socio-Cultural Community, the concept of the AEC was born from the ASEAN 2025 adopted by the leaders of the ASEAN. 

According to the AEC blueprint 2025, part of the ASEAN 2025, the AEC rests on four pillars; a single market and production base; a competitive economic region; equitable economic development; and integration with the global economy. 

The AEC has been expected to draw huge attention from the international society ever since it came into the world. It isn’t too much to say that agendas of the AEC blueprint 2025 such as elimination of tariffs, facilitation of skilled labor mobility, liberalization of investment and promotion of connectivity have been greatly valued to the global community. 

In fact, meaningful progress was already achieved since more than 70% of the intra-regional trade has been conducted free from any types of tariff.

Establishment of ASEAN Economic Community(1)

Establishment of the AEC(ASEAN Economic Community) and its implication for South Korea

The ASEAN(Association of Southeast Asian Nations), the 7th largest economy in the world, seems quite noisy in the wake of the new year, 2017. 

Assassination at the airport of the capital city of Malaysia triggered huge fury from all over the world as the North Korean regime is suspected of the mastermind of the incident. While Myanmar is under international criticism for the massacre of its minority group, Indonesia sees social conflict with controversy of the majority religious party's alleged attempt to exercise influence on the political sector. 

10 ASEAN members are faced with their own weighty political or diplomatic issues as mentioned. However, all countries may share their uniformed look at the 'AEC(ASEAN Economic Community)'. 

It is because the AEC came to the 2nd year of its ambitious inauguration 47 years after the establishment of the ASEAN in 1968.

Japan's move to protect geographical brands(8)

Japan’s move to protect geographical brands in China and its implication to Korea

After completion, my research will be published in the form of a Korean book and an English article in the journal of Korean Academy of Commodity Science & Technology in about 3 months. Whenever chances are given either at home or abroad, I will be willingly presenting my book and article to the academic field and governmental sector. 

As a former journalist, I wouldn’t sit idle to promote my publications to the media as well. As emphasized above, geographical brands haven’t been the talk of the town in the Korean academic field. Scholars have failed to spare enough time in delving into the importance of the protection of geographical brands overseas.

Against this background, my wish is that my subject will play a role of a stepping stone for full-fledged exploration on this issue in the mid-long term. If government officials get practical ideas from my project and put them into actions, it will be my excellent pride. This research involves three countries in Northeast Asia. 

This frontier quest will prove itself to be useful contents to all related parties in the region if relationship among Korea, Japan and China sees rooms for improvement, as a result. If so, it goes without saying that my reputation as an expert on issues of intellectual property rights will be shining. 

As such, I will have more chances to study on this field and even probably draw attention internationally. On this token, an exclusive and high-quality research will be of great help not only to myself but also to the growth of my organization, Korean Academy of Commodity Science & Technology.

Japan's move to protect geographical brands(7)

Japan’s move to protect geographical brands in China and its implication to Korea

It is manufacturing and entertainment industry which has generated most disputes over the intellectual property rights between Korea and China. Except a few cases surrounding the use of geographical brands for Korean rice and hot pepper sauce in America, geographical brands haven’t developed themselves into big issues so far in Korea. 

So studies and researches also have been focused on cases of private sectors, corporate activities in particular. However, keeping the ever-growing influence of China and recent ‘Korean Wave’ frenzy in China, it is little doubt that geographical brands will become hot-potato like issues soon. 

Needless to say, voices of requesting protection of Korean geographical brands in China will be drawing greater attention as well. In this regard, Japanese government’s recent initiatives have meaningful implication to Korea. Japan’s efforts to apply for trademarks abroad and to present guidelines at home are what Korean government should learn for its sake. 

In other words, this project will address a message that Korean government need to benchmark the researched cases and to come up with necessary measures to prevent potential troubles with China with no delay. 

Japan's move to protect geographical brands(6)

Japan’s move to protect geographical brands in China and its implication to Korea

In doing so, I can clearly recognize the beginning and developments of the various disputes. This on-site coverage will also give me better understanding of Japanese government’s subsequent actions to protect its geographical brands in China.

Secondly, I’ve been arranging meetings with officials at Japanese government and governmental agencies to apprehend the background of guideline issuance. Interviews with professionals at the international affairs division of the JPO and JETRO(Japan External Trade Organization) will allow me to draw an overall picture of the past, present and future of Japanese government’s stance on this controversial issue. 

In this regard, interviews with experts at reputable private organizations and universities including Japan Intellectual Property Association, Intellectual Property Management Center of Kyushu University and Office of Intellectual Property of Waseda University will broaden my horizon by supplying thoughtful views. 

On the similar context, books and magazines will be valuably utilized for the purpose of a preparatory research.

Japan's move to protect geographical brands(5)

Japan’s move to protect geographical brands in China and its implication to Korea

In terms of methodology, on-site visits and expert interviews are two pillars of my research. First of all, throughout mid September to mid October of 2013, I will pay a visit to 4 Japanese prefectures among 9 prefectures mentioned above. 

Specifically, I will visit Aomori Prefecture, Wakayama Prefecture, Fukuoka Prefecture and Kagoshima Prefecture where geographical brands of each prefecture have been broadly known even outside Japan.

I’ve been planning schedules to sites where geographical brands are born and to see what has happened in relation to China. Kagoshima Prefecture and its geographical brands including 県シンボルマーク, かごしまの農林水産物認証マーク, かごしまブランドマーク, かごしま黒豚証明書, さつま地鶏 and 薩摩 are one example.

For this, I’ve been hosting interviews with involved sections at chambers of commerce and industry of 4 prefectures. Leaders of local communities and officials at the industrial policy section of local governments would be contacted, too.

Japan's move to protect geographical brands(4)

Japan’s move to protect geographical brands in China and its implication to Korea


It is mainly because Japan’s exports of brand farm products could be adversely affected if Japanese geographical product and brand names are registered as Chinese trademarks. 

So far a total of 9 Japanese prefectures, Aomori Prefecture(靑森県), Hokkaido Prefecture(北海県), Yamanashi Prefecture(山梨県), Shiga Prefecture(滋賀県), Wakayama Prefecture(和歌山県), Fukuoka Prefecture(福岡県), Saga Prefecture(佐賀県), Nagasaki Prefecture(長崎県) and Kagoshima Prefecture (鹿児島県) have successfully taken actions to register their trademarks in China.

Though failing to react in advance, Japanese central and local governments have responded in a proper way. They did take relevant steps after disputes over misuse of Japanese geographical brands in China were reported. They actively applied for trademarks in China and introduced guidelines domestically to protect geographical brands from further damage. 

Such a move means a lot to Korean government as similar conflicts are expected to be wired between Korea and China in the near future. The concept of my project is born in this sense with special emphasis on timely and untouched research.

Japan's move to protect geographical brands(3)

Japan’s move to protect geographical brands in China and its implication to Korea

In fact, it has been alleged that many Chinese have illicitly trademarked or tried to trademark the names of famous Japanese places, names and local specialties in recent years. 

Long-lasted disputes and subsequent legal suits over Kagawa Prefecture(香川県)’s Sanuki Udon(讃岐うどん) between Japan’s Kabashima Shouji(樺島商事) and Taiwan’s Namchow Group are none other than a representative example. 

According to the Japan Patent Office(JPO), actual public notices were given or registrations were made on the basis of applications of third parties in China for 6 Japanese prefectures, Toyama Prefecture(富山県), Fukui Prefecture(福井県), Aichi Prefecture(愛知県), Yamaguchi Prefecture(山口県), Kagawa Prefecture(香川県) and Saga Prefecture(佐賀県). 

Against this background, Japanese government has accelerated its move in two folds since late 2000’s; applying for trademarks in China and coming up with guidelines for related parties in Japan. 

Japan's move to protect geographical brands(2)

Japan’s move to protect geographical brands in China and its implication to Korea

It is between Japan and China where disputes over the intellectual property rights arise most in Northeast Asia. The fact that Japan is still leading this area and China has been rapidly raising its clout lies in this phenomenon. 

As an emerging economy, China has tended to learn lessons from Japan, the most advanced economy in this region in a quick and simple way sometimes without due payment. Such aggressive drives time to time led to undesirable results accompanied by huge controversy and conflict.

More cases have been noticed in the corporate sector. However, conflicts in the public sector are no less serious. That could explain why Japanese central and local governments have been eager to protect Japanese geographical brands in China.