Japan’s move to protect geographical brands(16)

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

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(13)

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. 

Japan's move to preserve geographical brands(3)

Japan’s move to preserve 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.

Japan's move to preserve geographical brands(2)

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

Troubles are widely found in both private and public sectors. Especially, cases regarding the intellectual property rights are often being heard recently. This is no wonder in a time when the significance of the intangible assets is getting unprecedentedly highlighted as a key source of national competitiveness. 

For example, a company files a suit against its rivals in neighboring countries in charge of severe copyright infringement. A governmental agency is also embarrassed to catch its publications have been openly used in another country without legitimate process of offer and acceptance.

International Disputes over the Intellectual Property Rights(5)

Study on international disputes over the intellectual property rights

WIPO, Max Planck Institute in Germany and American Law Institute have also drafted international conventions regarding the governing law. These attempts are common in that they suggest 'lex loci protectionis' as principle for resolution of the international disputes over the intellectual property rights according to 'territorialitatsprinzip.' 

Indeed, it is difficult to solve the innumerable international disputes over the intellectual property rights arising simultaneously, while national interests conflict with each other due to different political, economic and cultural policies. Thus, unified global standards for the governing law have a long way to go.

Nevertheless, efforts should continue to be made to establish an international law and order for effective resolution of the international disputes over the intellectual property rights. Of course, Korea or the IT power envied by the world is obliged to be more concerned about the legal infra befitting her status in the international community.

International Disputes over the Intellectual Property Rights(4)

Study on international disputes over the intellectual property rights

Namely, the Korean court decided vividly that even if an intellectual property had been invented in a foreign nation but if a suit should be brought for its infringement or protection in Korea, the Korean law would be applied to the case according to 'lex loci protectionis.' 

The fact that the Korean court applied 'lex loci protectionis' to the case based on Article 24 of Private International Law specifying "Intellectual property rights shall be protected by the law of the nation where they are infringed upon" is interpreted in such a way that 'lex loci protectionis' accepted widely in determining the governing law for the international disputes over the intellectual property rights should be more realistic.

On the other hand, a variety of international efforts are being made to unify the standards for determining the governing law for the international disputes over the intellectual property rights. The model examples of such movements are Berne Convention, Rome Convention, and the like. 

International Disputes over the Intellectual Property Rights(3)

Study on international disputes over the intellectual property rights

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.

Such a trend is well reflected in 'Von Dutch' case. When the US designer died, companies of various nations attempted to take over his intellectual property right to use it for their trademarks. In this 'Von Dutch' case, the Korean court made it clear that it had applied 'lex loci protectionis' to the case according to territorialitatsprinzip.

International Disputes over the Intellectual Property Rights(2)

Study on 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. 

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. 

International Disputes over the Intellectual Property Rights(1)

Study on 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.

How I became interested in Southeast Asia(2)

Brief story of how I became interested in Southeast Asia including Indonesia

I advanced to Graduate School of Law at Younsei University while I was still working for the newspaper company. Unlike my undergraduate course, I chose law as my major because I realized the necessity of legal mind. 

My topic for the dissertation was 'A Study on Territorialitatsprinzip and Lex loci Protectionis in the International Disputes over the Intellectual Property Rights(Focused on the Issue of the Governing Law in Von Dutch Case)'. 

This is because I wanted to deal with international issues and the international law in depth in which I had been much interested. I was also given a chance to take a short-term MBA program at JAIMS in Hawaii, America.

Japan's reaction to protect geographical brands in China(12)

Japan's reaction to protect geographical brands in China and its implication to South Korea

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 reaction to protect geographical brands in China(9)

Japan's reaction to protect geographical brands in China and its implication to South Korea

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

Japan's reaction to protect geographical brands in China(2)

Japan's reaction to protect geographical brands in China and its implication to South Korea

For example, a company files a suit against its rivals in neighboring countries in charge of severe copyright infringement. A governmental agency is also embarrassed to catch its publications have been openly used in another country without legitimate process of offer and acceptance. 

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.

Japan's reaction to protect geographical brands in China(1)

Japan's reaction to protect geographical brands in China and its implication to South Korea

As the wave of globalization is getting bigger and bigger, national economies also impact to each other more frequently. Thus, snowballing international disputes are reported here and there in the international stage. 

This is no exception in Northeast Asia. In fact, growing number of cross-border conflicts have been observed in this region. It is mainly because Japan, Korea and China have not only cooperative partnership but also competitive relationship. Troubles are widely found in both private and public sectors.

Especially, cases regarding the intellectual property rights are often being heard recently. This is no wonder in a time when the significance of the intangible assets is getting unprecedentedly highlighted as a key source of national competitiveness. 

Governing Law in Von Dutch Case(5)

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

Indeed, it is difficult to solve the innumerable international disputes over the intellectual property rights arising simultaneously, while national interests conflict with each other due to different political, economic and cultural policies. 

Thus, unified global standards for the governing law have a long way to go. Nevertheless, efforts should continue to be made to establish an international law and order for effective resolution of the international disputes over the intellectual property rights. 

Of course, Korea or the IT power envied by the world is obliged to be more concerned about the legal infra befitting her status in the international community.

Governing Law in Von Dutch Case(4)

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

On the other hand, a variety of international efforts are being made to unify the standards for determining the governing law for the international disputes over the intellectual property rights. 

The model examples of such movements are Berne Convention, Rome Convention, and the like. WIPO, Max Planck Institute in Germany and American Law Institute have also drafted international conventions regarding the governing law. 

These attempts are common in that they suggest 'lex loci protectionis' as principle for resolution of the international disputes over the intellectual property rights according to 'territorialitatsprinzip.'

Governing Law in Von Dutch Case(3)

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

Such a trend is well reflected in 'Von Dutch' case. When the US designer died, companies of various nations attempted to take over his intellectual property right to use it for their trademarks. 

In this 'Von Dutch' case, the Korean court made it clear that it had applied 'lex loci protectionis' to the case according to territorialitatsprinzip. 

Namely, the Korean court decided vividly that even if an intellectual property had been invented in a foreign nation but if a suit should be brought for its infringement or protection in Korea, the Korean law would be applied to the case according to 'lex loci protectionis.' 

The fact that the Korean court applied 'lex loci protectionis' to the case based on Article 24 of Private International Law specifying "Intellectual property rights shall be protected by the law of the nation where they are infringed upon" is interpreted in such a way that 'lex loci protectionis' accepted widely in determining the governing law for the international disputes over the intellectual property rights should be more realistic.

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.

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.