10 Towards a Unified System of Jurisdiction in the Field ofIntellectual Property between Japan and Europe（*）
Invited Researcher: Aurelio Lopez-Tarruella Martinez（**）
At present, markets have become global. As a consequence, enterprises need to protect theirintangible assets in several countries. There are several international conventions that facilitate theregistration of IPR abroad. However, things are not facilitated at all when IPR are infringed and rightholders have to claim their rights in courts. With the exception of the European Union, international
jurisdiction is established according to national laws. Therefore, it is very difficult for right holders to know
where they can claim the protection of their rights. In addition, it is very usual that they will have to faceparallel proceeding in several States. This situation increases the costs of international commerce activities
and undermines the effective protection of IP right.
To overcome this situation, an international convention to unify the rules on jurisdiction, recognitionand enforcement of judgements in the field of IP is needed. It is the purpose of this work to compare thesystems of the EU and Japan with the aim of identifying points in common and points of disagreement intheir rules of jurisdiction. In particular, first part of the work will compare the rules on jurisdiction related
to actions concerning validity, registration, infringement of IPR and provisional measures. Second part will
focus in the regulation of parallel proceedings.
Thanks to this analysis it would be possible to determine which elements should be present in aninternational convention is this field so that the EU and Japan would ratify it.

Introduction
At present, markets have become global
thanks to the removal of barriers to commerce inthe framework of WTO, the increase of thenumber of economic integration organizations
such as the European Union and the developmentof information and communication technologies(Internet).
As a consequence of these elements, it ismore and more common for courts to hear aboutcross-border disputes related to intellectual
property rights. In these cases, the first a court
must do before hearing on the merits is todetermine whether it has jurisdiction or not. At
present to answer this question, except for thecase of the countries in the European Union,
national courts must rely on their national laws.
This situation is inconvenient for two reasons:a) Lack of legal certainty: it is difficult for
entities acting on international trade to know

where they can sue and where they can besued;b) Risk of parallel proceedings: courts fromdifferent countries may have jurisdiction tohear about the same dispute. Litigants risk
being involved in different proceedings withan increase on the costs of litigation and withthe lost of legal certainty.
These two problems constitute a serious
obstacle to international commerce and to theeffective enforcement of IPR in cross-borderdisputes(*1).
Despite the fact that works on this field of
law in the framework of the Hague Conference ofPrivate International Law failed, there isconsensus that an international instrument on
jurisdiction, applicable law and recognition of
judgment in the field of intellectual property isneeded. In fact, there are some academic
proposals of such an instrument such as the ALI
Principles(*2), the CLIP Principles(*3) or the(*)

This is a summary of the report published under the Industrial Property Research Promotion Project FY2009
entrusted by the Japan Patent Office.
(**) Assistant Professor of Private International Law, University of Alicante, Spain.
(*1) It has to be recalled that this is an objective adopted by the Member States of WTO in Part. III TRIPs Agreement.
(*2) American Law Institute, “Principles governing jurisdiction, choice of law, and judgments in transnational disputes,
available at http://www.ali.org/doc/2007_intellectualproperty.pdf(*3) The European Max Planck Group on Conflict of Law and Intellectual Property “Principles of Conflict of Laws
in Intellectual Property, Second Preliminary Draft”, available at
http://www.ip.mpg.de/shared/data/pdf/draft-clip-principles-06-06-2009.pdf

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● 1 ●Transparency of Japanese Law Project(*4).
It is my opinion that rules of jurisdiction ofthat international instrument should try to reacha balance between two objectives:a) The effective enforcement of intellectual
property rights. For this purpose, rules onjurisdiction must facilitate right holders tofile a complaint to protect their rights incross-border situations.
b) Defendant’s right to a due process. Rules onjurisdiction must be predictable and theymust manifest a close connection between
the courts and the dispute.
The objective of this work is to compare thesystems of jurisdiction in the European Union andin Japan and to analyze whether they meet thesestandards. For this purpose, the work is divided infive sections. The first one focuses on a generalexplanation of the rules of jurisdiction in both
systems and on the different approached they
adopt to regulate these questions. The following
sections will focus on the analysis of the rulesthat determine the jurisdiction of the courts tohear about disputes related to IP matters. Both inJapan and the European Union, these rules aredifferent depending on the subject matter of thecomplaint. Therefore, a distinction needs to bemade among actions concerning the validity andregistration of industrial property rights (sectionII), actions related to the infringement of thoserights (section III) and requests for provisional orinterim measures (section IV). Finally, section V
will deal with the solutions provided in eachsystem to international parallel litigation.

Ⅰ General overview of the European
Union and Japanese systems on
jurisdiction: predictability vs.
fairness
The European and Japanese approaches tothe regulation of jurisdiction are quite different.
To start with, in the European Union thisquestion is governed by R. 44/2001(*5), an
instrument that is in the process of being revisedby the European institutions(*6).
In Japan, there is not an instrument oninternational jurisdiction. Courts apply rules on
domestic jurisdiction in Arts. 4 and ff of the Codeof Civil Procedure (CCP) to declare jurisdiction ininternational cases(*7). Japan is in the process ofadopting an Act on international jurisdiction(*8).
Another distinction of both systems lies on
the binding or non binding nature of their rules onjurisdiction. In R. 44/2001 these rules are binding.
That is, if the conditions established in one of its
provisions are met, a court must declarejurisdiction(*9). In this sense, the system is very
rigid. This favors legal certainty and predictabilityof solutions. Thanks to this, defendant’s right to adue process is ensured. However, the system
lacks flexibility: it does not allow the courts totake into account other objectives (such as theeffective enforcement of IPR) on the applicationof the grounds of jurisdiction.
In the Japanese system, rules in the CCP are
not binding. This is so because, even when theconditions to apply those rules are met, Japanesecourts can decline jurisdiction on the basis of the“special circumstances doctrine”: if thedeclaration of jurisdiction would be contrary to
the principles of fairness as between the parties
and of the expectation of a proper and speedy trial
Japanese courts should decline jurisdiction(*10).

(*4) The Copyright Group, Industrial Property Rights Group and the International Civil Procedure Group of theTransparency of Japanese Law Project submitted informal proposals related to jurisdiction, choice of law,
recognition and enforcement of judgments in the field of Intellectual Property (hereinafter the JapaneseTransparency Project) in May 2009. The informal proposals and other relevant documents are available at
http://www.tomeika.jur.kyushu-u.ac.jp/chizai/symposium/index_en.html. Another Project in Japan that is dealing
with these questions is the WASEDA Project. Unfortunately, the opinions of the members of this project have notbeen published in English so far.
(*5) Regulation 44/2001 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters (OJ L
12, 16 January 2001). Switzerland, Iceland, Norway and the European Union are part of the Lugano Convention, an
instrument whose content is similar to that of R. 44/2001.
(*6) Green Paper on the review of Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters, Doc. COM(2009)175 final.
(*7) See Supreme Court, Judgement 16 October 1981, “Malasyan Airline System”, Minshu Vol 35, No. 7, p. 1224.
(*8) An Interim Proposal of that Act can be found in Japanese at http://www.moj.go.jp/SHINGI/090710-1-2.pdf.
(*9) See for example EJC Judgment of 10 February 2009, C-185/07, “West Tankers ”, of 13 July 2006, C-539/03, “Roche
Nederlanden c. Primus” and of 13 July 2006, C-4/03, “GAT c. LuK”.
(*10) Supreme Court, Judgement 11 November 1997, “Family”, Minshu Vol. 51, No. 10, p. 4055.

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This flexibility is good because it allows judges toaccommodate the application of each ground ofjurisdiction to the particularities of each case.
However, as several Japanese authors haveaffirmed, it may lead to legal uncertainty(*11). A
person can never know for sure whether they canbe sued or can sue before Japanese courts
because, on application of this doctrine, courts
can always decline jurisdiction.
In our opinion, to reach a balance between
effective enforcement of IPR and defendant’s
right to a due process, a general provision
establishing the “special circumstances doctrine”
should be avoided. Flexibility must be introducedon the drafting of the rules on jurisdiction foreach category of actions.

Ⅱ Actions on the validity or
registration of intellectual property
rightsBoth in Japan(*12) and the European Union(*13),
actions on the validity or the registration of IPR
are of the exclusive jurisdiction of the courts of
the State where those rights are registered. Thismeans that courts from other States cannot hear
about this category of actions and, in any case, thedecisions they may adopt will never berecognized at least in the country where the IPR
is registered(*14).
However, consensus does not exist onwhether this exclusive jurisdiction is also

applicable when the question of validity of the IPR
is raised as a defense or as a counterclaim in theframework of an infringement proceeding. In theEuropean Union, the ECJ declared in “GAT” (*15)
that exclusive jurisdiction applies in both cases.
This solution hinders the effective enforcement of
IPR because it creates the risk that a court can behearing about an infringement of an IPR that isclearly invalid and because it allows defendants toeasily block infringement proceedings. In Japan adifferent solutions has been sustained obiter dicta
in the “Coral Sand” Case: Japanese courts canhear about the validity of a foreign patent as anincidental question in the framework of an
infringement proceeding. The decision about thevalidity of the IPR shall only have effects between
the parties and it cannot be recognized in theforeign state(*16).
The solution provided in Japanese law favors
the effective enforcement of IPR and it is in linewith the academic proposals in this field(*17).
However it is very unlikely that the European
Union will amend its case law in the near
future(*18).

Ⅲ Actionsrelatedinfringementofproperty rights

totheintellectual

While in actions concerning validity or
registration of IPR, the courts of a State candeclare their jurisdiction according to one and(*11) Y. NISHITANI, “ Intellectual Property in Japanese Private International Law”, JAIL, No 48, 2005, pp. 87 and ff. 88;
T. KONO, “Recent Judgments in Japan on Intellectual Property Rights, Conflicts of Laws and International
Jurisdiction”, in J. Drexl / A. Kur (eds.), IP and Private International Law: Heading for the Future, IIC Studies,
Oxford /Portland, Hart Publishing, 2005, pp. 229 ss, 230; T. UENO, “International Jurisdiction in Intellectual
Property Rights Infringement Cases”, p. 8, available at
http://www.tomeika.jur.kyushu-u.ac.jp/chizai/symposium/index_en.html.
(*12) Tokyo District Court Judgment 16 October 2003, “Coral Sand” Case, Hanrei Jiho, No. 1874: 23. Obiter dicta: “it isgenerally understood that the country of patent registration has exclusive jurisdiction over actions seeking a
judgment negating the establishment of a patent right or invalidating a patent right”.
(*13) Art. 22.4 R. 44/2001.
(*14) See Art. 25 and 35 R. 44/2001.
(*15) ECJ Judgment 13 July 2006, C-4/03, “GAT c. LuK”.
(*16) Tokyo District Court, Judgment 16 October 2003 (Coral Sand case), Hanrei Jiho, No. 1874: 23: “the decision of invalidityof the patent only has effect as a decision within the reasoning of a judgement in the action seeking injunction, and does
not invalidate the patent right as against third parties. Therefore, recognition of this defense is not a reason to reject theinternational jurisdiction other than the country of registration, and even if the defending party in an action for injunction
raises the defense of patent invalidity, that is not a barrier to hearing the action in a court of a country other than the
country of registration”. Translation taken from S. CHAEN, “Legislative proposal….”, p. 2.
(*17) See Art. 2:401 (2) CLIP Principles.
(*18) First, the Green Paper does not mention this question as a problem that needs to be solved. Therefore, it seems
that this is not on the agenda of the Commission. Second, certain Member States have strongly expressed theiropinion in favor of the present interpretation of Art. 22 (4). According to their participation in the “GAT”
proceedings before the ECJ and the works on the Hague Convention, that is the position of the United Kingdom
and France. Finally, the unwillingness of the European Union to change this interpretation of the exclusive
jurisdiction rule is also expressed in the new Art. 22.4 Lugano Convention: contrary to the parallel provision in R.
44/2001, this provision clearly states that the exclusive jurisdiction applies “irrespective of whether the issue israised by way of an action or as a defense”.

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● 3 ●exclusive rule – that of the place of registration –,in actions related to infringement of IPR several
grounds of jurisdictions might be applicable bothin Japan and in the European Union(*19):a) Japanese and EU Member States’ courts candeclare their jurisdiction to hear about theseactions if the defendant is domiciled in the
territory of that State (Art. 4 CCP, Art. 2 R.
44/2001).
b) Alternatively Japanese and EU Member
States’ courts can declare their jurisdiction if
the infringement of the IPR took place in the
territory of that State. This is the so-called
forum delicti commissi (Art. 5 (ix) CCP, Art.
5 (3) R. 44/2001) (*20).
c) Japanese and EU Member States’ courts canalso declare their jurisdiction if the defendant
has a business office in the territory of that
State (Art 4 (5) CCP, Art 5 (5) R. 44/2001) (*21).
d) In those cases where there are multiple
defendants whose domiciles are in different
States, both Japan and EU allow thesubjective joinder of claims as far as certain
conditions are met(*22).
As it can be observed, the existence ofseveral grounds of jurisdiction(*23) allows litigantsin cross-border disputes to practice forum
shopping –e. i. they can choose to submit thecomplaint before the courts of the State that
better fit their interests. Thanks to this, effective
enforcement of IPR in cross-border disputes isstrengthened. However, some limits must be
imposed to this practice on the interpretation of

the rules on jurisdiction. If not, defendant’s rightto a fair trial and access to justice might beharmed.
These limits are related to b), forum delicti
commissi; and d), infringement by multiple
defendants.
1

Forum delicti commissi

Forum delicti commissi is the general rule ofjurisdiction in torts. In both systems it isinterpreted that the place where the tort wascommitted includes the “place of the harmful act”
or the “place of the consequences of the act” (*24).
On its application to infringements of IPR, threeelements need to be taken into account.
First of all, in disputes where theinfringement has taken place in multiple States,
the interpretation provided to this ground ofjurisdiction in Europe and Japan is different.
According to the ECJ “Shevill” Decision(*25), an
action related to the whole infringement can only
be filed before the courts of the State where thedefendant has its domicile or a permanentestablishment. The courts of each of the States
where the infringement occurred can only hear
about the infringement that took place in theirterritory. In Japan, if part of the infringement
occurred in the territory of Japan, the courts canhear about the whole of the infringement on
application of the objective joinder of claims (Art.
7 CCP) (*26). While this latter solution favor theeffective enforcement of IPR, it is too dangerous(*19) These grounds of jurisdiction are not applicable if the parties to the dispute have entered into a forum choiceagreement. Furthermore, they do not apply either if one of the parties files a complaint and the other submits
summons on the merits and does not challenge the jurisdiction of that courts. In any case, it is unrealistic thatthese situations may appear in actions on infringement of IPR.
(*20) In the case of Art. 5 (3) R. 44/2001, this provision is only applicable when the defendant is domiciled in a Member
State. In cases where the defendant is domiciled in a third State, Member States’ courts must determine theirjurisdiction in accordance with their national laws. Broadly speaking, Member States’ national rules on jurisdiction
also established the forum delicti commissi.
(*21) In the European Union, Art. 5 (5) R. 44/2001 is only applicable when the parent company is domiciled in a Member
State.
(*22) Art. 7 CCP, Art. 6 (1) R. 44/2001. The provision in R. 44/2001 is only applicable when all the defendants are
domiciled in the European Union.
(*23) In Japan, there is another ground of jurisdiction available to the plaintiff: according to Art. 5 (iv) CCP, Japanesecourts can declare jurisdiction when the location of the subject matter of the claim or security over the same or ofany seizable property of the defendant is in Japan. The ground is particularly relevant in disputes where an
infringement does not exist. That is the case of actions related to the existence and ownership of IPR. In Europe,
these actions can only be filed before the courts of the Member State where the defendant is domiciled. There is
not an special ground of jurisdiction for this category of actions.
(*24) In Europe, this interpretation can be found in ECJ Judgment 30 November 1976, C-21/76, “Bier c. Mines de Potassed’Alsace”. In Japan, this interpretation is sustained by legal doctrine. See as an example the document“International …”, p. 16.
(*25) ECJ Judgment 7 March 1995, C-689/93, “Shevill c. Presse Alliance”.
(*26) Supreme Court, Judgment 8 June 2001, “Ultraman”, Minshu, Vol. 55, No. 4, p.727. Y. NISHITANI, “Intellectual
Property…”, supra note 11, p. 94. The author underlines the differences between the solutions provided by the EU
and Japanese systems in these cases.
● 4 ●IIP Bulletin 2010for the defendant’s right to a due process since hecannot predict that he can be sued in Japan for thewhole of the infringement. That is so, even if
Japanese courts may apply the “special
circumstances doctrine” in these situations. For
this reason, it is our opinion that jurisdiction tohear disputes related to the whole of theinfringement should correspond to the courts of
the State where the defendant is domiciled or has
an establishment, or to the courts of the forum
delicti commissi if there are the most closely
connected to the dispute.
Second, in infringements of IPR in theInternet, simple accessibility of a web site is notenough for courts to declare jurisdiction on thebasis of forum delicti commissi. In both systems
there seems to exist consensus that it has to beshown that the web site is targeted towards that
State(*27). To determine this at least the following
elements must be taken into account: a) whether
the web site is interactive or passive; b) whether
consumers from that country have purchased
products or contracted services from that website; c) whether residents from that country havedownload illegal contents from the web site; d)whether the web site includes disclaimers that
informs that the products or services are offered
on not to that country(*28).
Finally, it has to be interpreted that actions
for declaration of non infringement can be filed
before the courts of the forum delicti commissi.
While this interpretation has been sustained inJapan (“Miyakoshi v. Gould” Case(*29)), in Europe
national courts have adopted divergent judgments
and the ECJ has not had the chance to adopt a
conclusive interpretation yet. In our opinion, thepossibility to file these actions before the courtsof the forum delicti commissi (the place where
the IPR whose infringement is questioned is
exploited) favors the effective enforcement of IPR
while it does not affect at all defendant’s due
process right. This interpretation is in line withthe academic proposals in this field (*30).

2

Actions on infringements of IPR against
multiple defendants

It usually arises that an IPR is infringed in
multiple countries by several companies
belonging to the same group and administered bya parent company. In these cases, it is convenient
to consolidate the actions against the different
defendants in one court. However, in Europe,
according to the ECJ “Roche” Decision(*31), this is
not possible. Art. 6 (1) R. 44/2001 requires theclaims to be closely connected and the existenceof a risk of irreconcilable judgments if the claims
were to be judged separately. In the situation
above the infringed IPRs are different thus thislatter condition is not meet. It is sustained that
this interpretation hinders the effective
enforcement of IPR. For this reason, a more
flexible approach such as the one in Japan should
be adopted(*32).
In any case, the subjective joinder of claims
always entails a danger to the defendant’s due
process right. The reason is that the court thatdeclares jurisdiction might be unexpected ormight not have a close link with the claim related
to that defendant. To avoid these problems, it isconvenient to follow the proposal provided by the
CLIP Principles(*33): consolidation should only bepossible before the courts of the State of domicileof the defendant coordinating the infringing
activities (the parent company) or before thecourts most closely connected to the dispute.

Ⅳ Applicationforprovisional
measures in international IPR
disputes
It is widely acknowledged that provisional orinterim measures play a very important role in
IPR
disputes
bothinternational
anddomestically(*34). For this reason, both theEuropean and the Japanese systems provide theparties with two alternatives to apply for them ininternational litigation: a) application before the(*27) In Europe, see the Joint Declaration of the Council and the Commission on Art. 15 R. 44/2001. In Japan, Y.
NISHITANI, “Intellectual Property…”, supra note 11, p. 94 understands that the “special circumstances doctrine”
would apply in the only contact with Japan is the accessibility of the web site.
(*28) This interpretation is in line with the academic proposals in the field: Section 202 (2) ALI Principles and Art. 2:202(2) (b) CLIP Principles.
(*29) Tokyo District Court, 30 May 1989, Hanrei Jihô, vol 1348, p. 91.
(*30) Section 213 (1) ALI Principles and Art. 2:210 CLIP Principles.
(*31) ECJ Judgment 13 July 2006, C-539/06, “Roche”.
(*32) Supreme Court, 28 April 1998, “Sadwani”, Minshu, vol 52, nº 3, p. 853. An example of subjective joinder of claimsin the filed of IPR can be found in “ Ultraman” case.
(*33) Art. 2:206.
(*34) Art. 50 (1) TRIPs Agreements underlines the relevance of these measures in IPR disputes.

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● 5 ●court that has jurisdiction as to the merits of thecase; b) or before the courts of the State wheresuch measure is to be executed – that is where
the property to be seized is located or where thealleged infringing activities are to be stopped.
The provisional measures that can be applied
for are those established in the lex fori. They canbe asked before the start of the proceedings as far
as the lex fori states so. Although, it is not clearly
established, it should be understood that the
court hearing about the main action has
jurisdiction to adopt provisional measures withextraterritorial effects, while the rest can only
adopt measures with territorial effects. This is inline with the CLIP Principles(*35).

Ⅴ International parallel litigation in
IPR disputes
By “international parallel litigation” we arereferring to the situation where overlapping
litigation is initiated in two different states inrespect of the same case. Both in the EU andJapanese systems it is considered that ininternational
parallellitigationcases
aconcentration or at least a coordination of theproceedings is needed for two basic reasons:
reduction of costs both for the parties and for thestates involved; avoidance of the risk ofcontradictory judgments. However, the way toensure that concentration or coordination iscompletely different in Europe and in Japan.
In lis pendens situations, Art. 27 R. 44/2001
states that the court second seized must stayproceedings until the court first seized
determines whether it has jurisdiction or not.
This system has proved to be extremely rigid andleads to abusive strategies such as the “torpedo
actions”: as soon as wrongdoers receive warning
letters or acknowledge that they are going to besued for IPR infringement, they file an action for
declaration of non infringement before courts
which are known to be very slow. Thanks to this,any action for infringement is blocked until thesecourts decide on their jurisdiction.
In Japan, there is not a uniform solution to lis
pendens situations. In some cases, Japanesecourts ignore pending foreign proceedings, inothers the “special circumstances doctrine” isapplied and in others the expectation ofrecognition of the future foreign judgment istaking into account. The lack of a uniform solution
in Japan is dangerous for legal certainty and theeffective enforcement of IPR. The situation iseven worse because current Japanese law does
not allow the courts to stay proceedings(*36).
In our opinion, the best solution would be toadopt the European solution with someamendments. The court second seized should
stay proceedings until the court first seized
determines its jurisdiction. However, if this court
has not adopted a decision within a reasonable
period of time, the court second seized should be
able to continue with the proceedings. This
interpretation is in line with the CLIP
Principles(*37) and should make “torpedo actions”
inefficient.
Finally, another complicated situation
appears when a party files an action for IPR
infringement before the courts of the state where
the defendant has its domicile or a permanentestablishment and subsequently the other party
challenges the validity of the IPR before thecourts of the state where the IPR is registered. In
these cases, the court first seized should stayproceedings until the court second seized adopts
a decision concerning the validity of the IPR. At
present the possibility to stay proceedings in thissituation is not contemplated in R. 44/2001
although nothing prevent national courts to do soin accordance with their procedural laws. The
problem is that there is a lack of uniformity on theway courts act in these situations. Legal certainty
is thus in great danger.
In Japan, there is no case law on this question.
Taking into account the way the courts treat
questions on validity of foreign IPR, the mostfeasible outcome is that Japanese courts will
ignore the foreign pending action and will
incidentally decide on the validity of the foreign
IPR before adopting the decision about the
infringement of the IPR in the foreign country.
Such decision will only have effects among theparties in that proceeding. The problem with thissolution may appear if the foreign court decides
differently from the decision adopted by theJapanese court. The defendant will have a right toclaim compensation for damages as far as the lawof the country where the patent was registeredprovides that but, in any case, the solution does(*35) Art. 2:501 (2) CLIP Principles states that provisional measures can be ordered by the courts of the State where themeasure is to be enforced or for which protection is sought. However, such measures cannot be recognized in othercontracting state (Art. 4:301 (1)), thereby their effects are limited to the country in which they were granted.
(*36) M. DOGAUCHI, “Japan”, in Fawcett, J. (Dir), Declining jurisdiction in Private international law , Oxford, Clarendon
Press, 1995, pp. 303 ff.
(*37) Art. 2:701 and ff.
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not benefit the effective protection of IPR. As
previously explained this would not happen if
Japanese courts would be able to stayproceedings.
To solve these problems a solution similar tothat in Art. 2:703 CLIP Principles might be
adopted both in Japan and the EU: a court may
stay proceedings about an IPR, if an action having
as its object the grant, registration, validity,
abandonment or revocation of a registered IPR isbrought in the State of registration afterwards.
The court first seized may order provisional
measures for the duration of the stay ofproceedings.

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